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Exhibit 4.3
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FACILICOM INTERNATIONAL, INC.,
Issuer
TO
STATE STREET BANK AND TRUST COMPANY,
Trustee
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Indenture
Dated as of January 28, 1998
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$300,000,000
10 1/2% Senior Notes due 2008
10 1/2% Series B Senior Notes due 2008
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FACILICOM INTERNATIONAL, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of January 28, 1998
Trust Indenture
Act Section Indenture Section
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(S) 310(a)(1).............................................. 607
(a)(2).............................................. 607
(b)................................................. 608
(S) 312(c)................................................. 701
(S) 314(a)................................................. 703
(a)(4).............................................. 1008(a)
(c)(1).............................................. 102
(c)(2).............................................. 102
(e)................................................. 102
(S) 315(b)................................................. 601
(S) 316(a)(last sentence).................................. 101 ("Outstanding")
(a)(1)(A)........................................... 502, 512
(a)(1)(B)........................................... 513
(b)................................................. 508
(c)................................................. 104(d)
(S) 317(a)(1).............................................. 503
(a)(2).............................................. 504
(b)................................................. 1003
(S) 318(a)................................................. 111
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
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PARTIES............................................................................ 1
RECITALS OF THE COMPANY............................................................ 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION....................................... 1
SECTION 101. Definitions................................................. 1
SECTION 102. Compliance Certificates and Opinions........................ 22
SECTION 103. Form of Documents Delivered to Trustee...................... 23
SECTION 104. Acts of Holders............................................. 23
SECTION 105. Notices, Etc., to Trustee, Company.......................... 25
SECTION 106. Notice to Holders; Waiver................................... 25
SECTION 107. Effect of Headings and Table of Contents.................... 25
SECTION 108. Successors and Assigns...................................... 26
SECTION 109. Separability Clause......................................... 26
SECTION 110. Benefits of Indenture....................................... 26
SECTION 111. Governing Law............................................... 26
SECTION 112. Legal Holidays.............................................. 26
ARTICLE TWO NOTE FORMS................................................... 27
SECTION 201. Forms Generally............................................. 27
SECTION 202. Restrictive Legends......................................... 28
ARTICLE THREE THE NOTES.................................................... 30
SECTION 301. Title and Terms............................................. 30
SECTION 302. Denominations............................................... 31
SECTION 303. Execution, Authentication, Delivery and Dating.............. 31
SECTION 304. Temporary Notes............................................. 32
SECTION 305. Registration, Registration of Transfer and Exchange......... 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes................. 34
SECTION 307. Payment of Interest; Interest Rights Preserved.............. 34
SECTION 308. Persons Deemed Owners....................................... 36
SECTION 309. Cancellation................................................ 36
SECTION 310. Computation of Interest..................................... 36
SECTION 311. Book-Entry Provisions for Global Notes...................... 36
SECTION 312. Transfer Provisions......................................... 38
ARTICLE FOUR SATISFACTION AND DISCHARGE................................... 41
SECTION 401. Satisfaction and Discharge of Indenture..................... 41
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SECTION 402. Application of Trust Money.................................. 42
ARTICLE FIVE REMEDIES..................................................... 43
SECTION 501. Events of Default.......................................... 43
SECTION 502. Acceleration of Maturity; Rescission and Annulment......... 45
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................... 45
SECTION 504. Trustee May File Proofs of Claim........................... 46
SECTION 505. Trustee May Enforce Claims Without Possession of Notes..... 47
SECTION 506. Application of Money Collected............................. 47
SECTION 507. Limitation on Suits........................................ 48
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................... 48
SECTION 509. Restoration of Rights and Remedies......................... 49
SECTION 510. Rights and Remedies Cumulative............................. 49
SECTION 511. Delay or Omission Not Waiver............................... 49
SECTION 512. Control by Holders......................................... 49
SECTION 513. Waiver of Past Defaults.................................... 50
SECTION 514. Waiver of Stay or Extension Laws........................... 50
ARTICLE SIX THE TRUSTEE................................................. 50
SECTION 601. Notice of Defaults......................................... 50
SECTION 602. Certain Rights of Trustee.................................. 51
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Notes................................................. 52
SECTION 604. May Hold Notes............................................. 53
SECTION 605. Money Held in Trust........................................ 53
SECTION 606. Compensation and Reimbursement............................. 53
SECTION 607. Corporate Trustee Required; Eligibility.................... 54
SECTION 608. Resignation and Removal; Appointment of Successor.......... 54
SECTION 609. Acceptance of Appointment by Successor..................... 55
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business.............................................. 56
ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY........... 56
SECTION 701. Disclosure of Names and Addresses of Holders............... 56
SECTION 702. Reports by Trustee......................................... 57
SECTION 703. Reports by Company......................................... 57
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE....... 58
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms....... 58
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SECTION 802. Successor Substituted...................................... 59
SECTION 803. Notes to Be Secured in Certain Events...................... 59
ARTICLE NINE SUPPLEMENTAL INDENTURES..................................... 59
SECTION 901. Supplemental Indentures Without Consent of Holders......... 59
SECTION 902. Supplemental Indentures with Consent of Holders............ 60
SECTION 903. Execution of Supplemental Indentures....................... 61
SECTION 904. Effect of Supplemental Indentures.......................... 61
SECTION 905. Conformity with Trust Indenture Act........................ 62
SECTION 906. Reference in Notes to Supplemental Indentures.............. 62
SECTION 907. Notice of Supplemental Indentures.......................... 62
ARTICLE TEN COVENANTS................................................... 62
SECTION 1001. Payment of Principal, Premium, if Any, and Interest....... 62
SECTION 1002. Maintenance of Office or Agency........................... 62
SECTION 1003. Money for Note Payments to Be Held in Trust............... 63
SECTION 1004. Corporate Existence....................................... 64
SECTION 1005. Payment of Taxes and Other Claims......................... 64
SECTION 1006. Maintenance of Properties................................. 65
SECTION 1007. Insurance................................................. 65
SECTION 1008. Statement by Officers as to Default....................... 65
SECTION 1009. Provision of Financial Statements and Reports............. 66
SECTION 1010. Repurchase of Notes upon Change of Control................ 66
SECTION 1011. Limitation on Indebtedness................................ 68
SECTION 1012. Limitation on Restricted Payments......................... 71
SECTION 1013. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries....................... 73
SECTION 1014. Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries................................. 75
SECTION 1015. Limitation on Transactions with Stockholders
and Affiliates.......................................... 75
SECTION 1016. Limitation on Liens....................................... 76
SECTION 1017. Limitation on Asset Sales................................. 76
SECTION 1018. Limitation on Issuances of Guarantees of Indebtedness
by Restricted Subsidiaries.............................. 78
SECTION 1019. Business of the Company; Restriction on Transfers
of Existing Business.................................... 79
SECTION 1020. Limitation on Investments in Unrestricted Subsidiaries.... 79
SECTION 1021. Limitation on Sale-Leaseback Transactions................. 79
SECTION 1022. Waiver of Certain Covenants............................... 80
ARTICLE ELEVEN REDEMPTION OF NOTES......................................... 80
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SECTION 1101. Right of Redemption....................................... 80
SECTION 1102. Applicability of Article.................................. 80
SECTION 1103. Election to Redeem; Notice to Trustee..................... 81
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.............. 81
SECTION 1105. Notice of Redemption...................................... 81
SECTION 1106. Deposit of Redemption Price............................... 82
SECTION 1107. Notes Payable on Redemption Date.......................... 82
SECTION 1108. Notes Redeemed in Part.................................... 83
ARTICLE TWELVE SECURITY.................................................... 83
SECTION 1201. Security.................................................. 83
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE.......................... 84
SECTION 1301. Company's Option to Effect Defeasance or Covenant
Defeasance.............................................. 84
SECTION 1302. Defeasance and Discharge.................................. 85
SECTION 1303. Covenant Defeasance....................................... 85
SECTION 1304. Conditions to Defeasance or Covenant Defeasance........... 85
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions..... 87
SECTION 1306. Reinstatement............................................. 88
TESTIMONIUM
SIGNATURES AND SEALS
EXHIBIT A Form of Note
EXHIBIT B Form of Certificate to Be Delivered upon Termination of Restricted
Period
EXHIBIT C Form of Regulation S Certificate
SCHEDULE A
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INDENTURE, dated as of January 28, 1998, between FACILICOM
INTERNATIONAL, INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 1401 New York Avenue, NW, 8th Floor, Washington, D.C. 20005, as issuer, and
STATE STREET BANK AND TRUST COMPANY, a trust company duly organized and existing
under the laws of The Commonwealth of Massachusetts, Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 10
1/2% Senior Notes due 2008 (the "Initial Notes"), and its 10 1/2% Series B
Senior Notes due 2008 (the "Exchange Notes" and, together with the Initial
Notes, the "Notes"), of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
Upon the issuance of Exchange Notes, if any, or the
effectiveness of the Shelf Registration Statement (as defined herein), this
Indenture will be subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
All things necessary have been done to make the Notes, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
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(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or assumed in
connection with an Asset Acquisition by the Company or a Restricted Subsidiary
and not incurred in connection with, or in anticipation of, such Person becoming
a Restricted Subsidiary or such Asset Acquisition; provided that Indebtedness of
such Person which is redeemed, defeased, retired or otherwise repaid at the time
of or immediately upon the consummation of the transactions by which such Person
becomes a Restricted Subsidiary or such Asset Acquisition shall not be
considered as Indebtedness.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, is defined to mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Armstrong" means Armstrong Holdings, Inc., which owns
Armstrong International Telecommunications, Inc., of which the Company is a
majority owned indirect Subsidiary.
"Asset Acquisition" means (i) an investment by the Company or
any of its Restricted Subsidiaries in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or shall be merged
into or consolidated with the Company or any of its Restricted Subsidiaries or
(ii) an acquisition by the Company or any of its Restricted Subsidiaries of the
property and assets of any Person (other than the Company or any of its
Restricted Subsidiaries) that constitute substantially all of a division or line
of business of such Person.
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"Asset Disposition" means the sale or other disposition by the
Company or any of its Restricted Subsidiaries (other than to the Company or
another Restricted Subsidiary of the Company) of (i) all or substantially all of
the Capital Stock of any Restricted Subsidiary of the Company or (ii) all or
substantially all of the assets that constitute a division or line of business
of the Company or any of its Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or sale-leaseback transactions) in
one transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person (other than the Company or any of its
Restricted Subsidiaries) of (i) all or any of the Capital Stock of any
Restricted Subsidiary (other than in respect of any director's qualifying shares
or investments by foreign nationals mandated by applicable law), (ii) all or
substantially all of the property and assets of an operating unit or business of
the Company or any of its Restricted Subsidiaries or (iii) any other property
and assets of the Company or any of its Restricted Subsidiaries outside the
ordinary course of business of the Company or such Restricted Subsidiary and, in
each case, that is not governed by Article Eight and which, in the case of any
of clause (i), (ii) or (iii) above, whether in one transaction or a series of
related transactions, (a) have a fair market value in excess of $1 million or
(b) are for net proceeds in excess of $1 million; provided that sales or other
dispositions of inventory, receivables and other current assets in the ordinary
course of business shall not be included within the meaning of "Asset Sale".
"Attributable Value" means, as to any particular lease under
which any Person is at the time liable other than a Capitalized Lease
Obligation, and at any date as of which the amount thereof is to be determined,
the total net amount of rent required to be paid by such person under such lease
during the remaining term thereof (whether or not such lease is terminable at
the option of the lessee prior to the end of such term), including any period
for which such lease has been, or may, at the option of the lessor, be extended,
discounted from the last date of such term to the date of determination at a
rate per annum equal to the discount rate which would be applicable to a
Capitalized Lease Obligation with like term in accordance with GAAP. The net
amount of rent required to be paid under any lease for any such period shall be
the aggregate amount of rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of insurance, taxes,
assessments, utility, operating and labor costs and similar charges.
"Attributable Value" means, as to a Capitalized Lease Obligation under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the capitalized amount thereof that would appear on the face
of a balance sheet of such Person in accordance with GAAP.
"Average Life" means, with respect to any Indebtedness, as at
any date of determination, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from such date to the date or dates of each
successive scheduled principal payment (including, without limitation, any
sinking fund requirements) of such Indebtedness and (b) the amount of each such
principal payment by (ii) the sum of all such principal payments.
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"Board of Directors" means the board of directors of the
Company or its equivalent, including managers of a limited liability company,
general partners of a partnership or trustees of a business trust, or any duly
authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by
the secretary or any assistant secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York or The City of Boston are authorized or obligated by law or executive order
to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents (however
designated, whether voting or non-voting) in equity of such Person, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all Common Stock and Preferred Stock.
"Capitalized Lease Obligation" means any obligation under a
lease of (or other agreement conveying the right to use) any property (whether
real, personal or mixed) that is required to be classified and accounted for as
a capital lease obligation under GAAP, and, for the purpose of this Indenture,
the amount of such obligation at any date shall be the capitalized amount
thereof at such date, determined in accordance with GAAP.
"Certificated Notes" has the meaning specified in Section 201.
"Change of Control" means such time as (i) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
(other than Armstrong or FMG) becomes the ultimate "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total
voting power of the then outstanding Voting Stock of the Company on a fully
diluted basis; (ii) individuals who at the beginning of any period of two
consecutive calendar years constituted the Board of Directors (together with any
directors who are members of the Board of Directors on the date hereof and any
new directors whose election by the Board of Directors or whose nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds of the members of the Board of Directors then still in office who
either were members of the Board of Directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the members of such Board of Directors
then in office; (iii) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one transaction or a series
of related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole to any such "person" or "group"
(other than to the Company or a Restricted Subsidiary); (iv) the merger or
consolidation of the Company, with or into another corporation or the merger of
another corporation with or into the Company in one or a series of related
transactions with the effect that immediately after such transaction any such
"person" or "group" of persons or entities shall have become the beneficial
owner of securities of the surviving corporation of such merger or consolidation
representing a majority of the total
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voting power of the then outstanding Voting Stock of the surviving corporation;
or (v) the adoption of a plan relating to the liquidation or dissolution of the
Company.
"Change of Control Offer" has the meaning specified in Section
1010.
"Change of Control Payment" has the meaning specified in
Section 1010.
"Change of Control Payment Date" has the meaning specified in
Section 1010.
"Closing Date" means the date on which the Initial Notes are
originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents (however
designated, whether voting or non-voting) of such Person's common stock, whether
now outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its chairman, its president, any
Vice President, its treasurer or any assistant treasurer, and delivered to the
Trustee.
"Consolidated Cash Flow" means, for any period, the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) income taxes, to the extent such amount was deducted in
calculating Consolidated Net Income (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses or
sales of assets), (iv) depreciation expense, to the extent such amount was
deducted in calculating Consolidated Net Income, (v) amortization expense, to
the extent such amount was deducted in calculating Consolidated Net Income, and
(vi) all other non-cash items reducing Consolidated Net Income (excluding any
non-cash charge to the extent that it represents an accrual of or reserve for
cash charges in any future period), less all non-cash items increasing
Consolidated Net Income, all as determined on a consolidated basis for the
Company and its Restricted Subsidiaries in conformity with GAAP.
"Consolidated Fixed Charges" means, for any period,
Consolidated Interest Expense plus dividends declared and payable on Preferred
Stock.
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"Consolidated Interest Expense" means, for any period, the
aggregate amount of interest in respect of Indebtedness (including capitalized
interest, amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in accordance
with the effective interest method of accounting; all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing; the net costs associated with any Interest Rate
Agreements; and interest on Indebtedness that is Guaranteed or secured by the
Company or any of its Restricted Subsidiaries) and all but the principal
component of rentals in respect of Capitalized Lease Obligations paid, accrued
or scheduled to be paid or to be accrued by the Company and its Restricted
Subsidiaries during such period.
"Consolidated Net Income" means, with respect to any Person,
for any period, the consolidated net income (or loss) of such Person and its
Restricted Subsidiaries for such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net income, by excluding,
without duplication, (i) all extraordinary gains or losses, (ii) net income (or
loss) of any Person combined in such Person or one of its Restricted
Subsidiaries on a "pooling of interests" basis attributable to any period prior
to the date of combination, (iii) gains or losses (on an after-tax basis) in
respect of any Asset Sales by such Person or one of its Restricted Subsidiaries,
(iv) the net income of any Restricted Subsidiary of such Person to the extent
that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulations applicable to that
Restricted Subsidiary or its stockholders, (v) any gain or loss realized as a
result of the cumulative effect of a change in accounting principles, (vi) any
amount paid or accrued as dividends on Preferred Stock of the Company or
Preferred Stock of any Restricted Subsidiary owned by Persons other than the
Company and any of its Restricted Subsidiaries and (vii) the net income (or
loss) of any Person (other than net income (or loss) attributable to a
Restricted Subsidiary) in which any Person (other than the Company or any of its
Restricted Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to the Company or any
of its Restricted Subsidiaries by such other Person during such period.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly or
annual consolidated balance sheet of the Company and its Subsidiaries (which
shall be as of a date not more than 90 days prior to the date of such
computation), less any amounts attributable to Redeemable Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of the Capital Stock of the Company or any of its Subsidiaries, each item to be
determined in conformity with GAAP (excluding the effects of foreign currency
exchange adjustments under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 52).
"Corporate Trust Office" means the principal corporate trust
operations office of the Trustee, at which at any particular time its corporate
trust business shall be administered,
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which office at the date of execution of this Indenture is located at 225
Franklin Street, Boston Massachusetts 02110, Attention: Corporate Trust
Department.
"corporation" includes corporations, associations, companies
and business trusts.
"covenant defeasance" has the meaning specified in Section
1303.
"Credit Facilities" means one or more debt facilities or
commercial paper facilities with banks or other institutional lenders providing
for revolving credit loans, term loans, receivables financing (including through
the sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each
case, as amended, restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time.
"Cumulative Consolidated Cash Flow" means, for the period
beginning on the Closing Date through and including the end of the last fiscal
quarter (taken as one accounting period) preceding the date of any proposed
Restricted Payment, Consolidated Cash Flow of the Company and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP.
"Cumulative Consolidated Fixed Charges" means the Consolidated
Fixed Charges of the Company and its Restricted Subsidiaries for the period
beginning on the Closing Date through and including the end of the last fiscal
quarter (taken as one accounting period) preceding the date of any proposed
Restricted Payment, determined on a consolidated basis in accordance with GAAP.
"Cumulative Consolidated Interest Expense" means, for the
period beginning on the Closing Date through and including the end of the last
fiscal quarter (taken as one accounting period) preceding the date of any
proposed Restricted Payment, Consolidated Interest Expense of the Company and
its Restricted Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement and any other arrangement and agreement designed to
provide protection against fluctuations in currency (or currency unit) values.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1302.
"Depositary" means The Depository Trust Company, its nominees
and successors or any replacement thereof.
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"Eligible Accounts Receivable" means the accounts receivable
(net of any reserves and allowances for doubtful accounts in accordance with
GAAP) of any Person that are not more than 60 days past their due date and that
were entered into in the ordinary course of business on normal payment terms as
shown on the most recent consolidated balance sheet of such Person filed with
the Commission, all in accordance with GAAP.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, and has outstanding debt with a rating of "A-3"
or higher according to Moody's Investors Service, Inc., or "A-" or higher
according to Standard & Poor's Ratings Services (or such similar equivalent
rating by at least one "nationally recognized statistical rating organization"
(as defined in Rule 436 under the Securities Act)), at the time as of which any
investment or rollover therein is made.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning specified in Section 1017.
"Excess Proceeds Offer" has the meaning specified in Section
1017.
"Excess Proceeds Payment" has the meaning specified in Section
1017.
"Excess Proceeds Payment Date" has the meaning specified in
Section 1017.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" has the meaning stated in the first recital
of this Indenture and refers to any Exchange Notes containing terms
substantially identical to the Initial Notes (except that such Exchange Notes
shall not contain terms with respect to transfer restrictions and shall be
registered under the Securities Act) that are issued and exchanged for the
Initial Notes in accordance with the Exchange Offer, as provided for in the
Registration Rights Agreement and this Indenture.
"Exchange Offer" means the offer by the Company to the Holders
of the Initial Notes to exchange all of the Initial Notes for Exchange Notes, as
provided for in the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange
Offer Registration Statement as defined in the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness outstanding on the
date hereof.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
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"FMG" means FCI Management Group, a Pennsylvania general
partnership and holder of a minority interest in the Company.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession of the United States.
"Global Notes" means any of the Rule 144A Global Notes or
Regulation S Global Notes.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreements to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term "Guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" means a Person in whose name a Note is registered in
the Register.
"Incur" or "Incurrence" means, with respect to any
Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become
liable for or with respect to, or become responsible for, the payment of,
contingently or otherwise, such Indebtedness, including an Incurrence of
Indebtedness by reason of the acquisition of more than 50% of the Capital Stock
of any Person; provided that neither the accrual of interest nor the accretion
of original issue discount shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date
of determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
which purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion of
such services, except Trade Payables, (v) all obligations of such Person as
lessee under Capitalized Lease Obligations and the Attributable Value under any
Sale-Leaseback Transaction of such Person, (vi) all Indebtedness of other
Persons secured by a
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Lien on any asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided that the amount of such Indebtedness shall be the lesser
of (A) the fair market value of such asset at such date of determination or (B)
the amount of such Indebtedness, (vii) all Indebtedness of other Persons
Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such
Person, (viii) the maximum fixed redemption or repurchase price of Redeemable
Stock of such Person at the time of determination and (ix) to the extent not
otherwise included in this definition, obligations under Currency Agreements and
Interest Rate Agreements. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation;
provided (x) that the amount outstanding at any time of any Indebtedness issued
with original issue discount is the face amount of such Indebtedness less the
remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP and (y) that
Indebtedness shall not include any liability for federal, state, local or other
taxes.
"Indenture" means this instrument and the Pledge Agreement as
originally executed and as they may from time to time be supplemented or amended
by one or more indentures supplemental hereto and pledge agreements supplemental
thereto entered into pursuant to the applicable provisions hereof.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" has the meaning stated in the first recital of
this Indenture.
"Initial Purchasers" means Lehman Brothers Inc. and BT Alex.
Brown Incorporated.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Interest Rate Agreements" means any interest rate swap
agreements, interest rate cap agreements, interest rate insurance, and other
arrangements and agreements designed to provide protection against fluctuations
in interest rates.
"Interest Rate Protection Obligations" means the obligations
of any Person pursuant to any Interest Rate Agreements.
"Investment" in any Person means any direct or indirect
advance, loan or other extension of credit (including, without limitation, by
way of Guarantee or similar arrangement; but excluding advances to customers in
the ordinary course of business that are, in conformity with GAAP, recorded as
accounts receivable on the balance sheet of the Company or its Restricted
Subsidiaries) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of
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others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person. For purposes of
the definition of "Unrestricted Subsidiary" and Sections 1012 and 1014, (i)
"Investment" shall include (a) the fair market value of the assets (net of
liabilities) of any Restricted Subsidiary of the Company at the time that such
Restricted Subsidiary of the Company is designated an Unrestricted Subsidiary
and shall exclude the fair market value of the assets (net of liabilities) of
any Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is
designated a Restricted Subsidiary of the Company and (b) the fair market value,
in the case of a sale of Capital Stock in accordance with Section 1014 such that
a Person no longer constitutes a Restricted Subsidiary, of the remaining assets
(net of liabilities) of such Person after such sale, and shall exclude the fair
market value of the assets (net of liabilities) of any Unrestricted Subsidiary
at the time that such Unrestricted Subsidiary is designated a Restricted
Subsidiary of the Company and (ii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer, in each case as determined by the Board of Directors in good
faith.
"IRU" means Indefeasible Right of Use, which is the right to
use a telecommunications system with most of the rights and duties of ownership,
but without the right to control or manage such facility and, depending upon the
particular agreement, without any right to salvage or duty to dispose of such
system's cable at the end of its useful life.
"Issue Date" means January 28, 1998, the date the Initial
Notes are initially issued.
"Lien" means any mortgage, charge, pledge, security interest,
encumbrance, lien (statutory or other), hypothecation, assignment for security,
claim, or preference or priority or other encumbrance upon or with respect to
any property of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof, any sale with
recourse against the seller or any Affiliate of the seller, or any agreement to
give any security interest).
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"MAOU" means Minimum Assignable Ownership Units which is
capacity on a telecommunications system that has been acquired on an ownership
basis.
"Marketable Securities" means: (i) U.S. Government Obligations
which have a remaining weighted average life to maturity of not more than one
year from the date of Investment therein; (ii) any time deposit account, money
market deposit and certificate of deposit maturing not more than 180 days after
the date of acquisition issued by, or time deposit of, an Eligible Institution;
(iii) certificates of deposit, Eurodollar time deposits and bankers' acceptances
with maturity of 90 days or less and overnight bank deposits of any financial
institution that is organized under the laws of the United States of America or
any state hereof, and which bank or trust company has capital, surplus and
undivided profits aggregating in excess of $300 million (or, to the extent
non-United States dollar denominated, the United States Dollar Equivalent of
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such amount) and has outstanding debt which is rated "A" (or such similar
equivalent rating) or higher by at least one " nationally recognized statistical
rating organization" (as defined in Rule 436 under the Securities Act); (iv)
commercial paper maturing not more than 180 days after the date of acquisition
issued by a corporation (other than an Affiliate of the Company) with a rating,
at the time as of which any investment therein is made, of "P-1" or higher
according to Moody's Investors Service, Inc., or "A-1" or higher according to
Standard & Poor's Ratings Services (or such similar equivalent rating by at
least one "nationally recognized statistical rating organization" (as defined in
Rule 436 under the Securities Act)); (v) auction rate preferred securities whose
rates are reset based on market level for a par security not more than 90 days
after the date of acquisition with a rating, at the time as of which any
investment therein is made, of "A-3" or higher according to Moody's Investors
Service, Inc., or "A-" or higher according to Standard & Poor's Ratings Services
(or such similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the Securities
Act)) and issued by a corporation that is not an Affiliate of the Company; (vi)
any banker's acceptance or money market deposit accounts issued or offered by an
Eligible Institution; (vii) repurchase obligations with a term of not more than
seven days for U.S. Government Obligations entered into with an Eligible
Institution; (viii) any obligations of the Trustee to the extent such
obligations qualify as such under clauses (i) through (vii) above and (ix) any
fund investing exclusively in investments of the types described in clauses (i)
through (viii) above.
"Maturity", when used with respect to any Notes, means the
date on which the principal of such Notes or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, notice of redemption or otherwise.
"Maturity Date" means January 15, 2008.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale,
the proceeds of such Asset Sale in the form of cash or cash equivalents,
including payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary of the Company) and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of (i) brokerage
commissions and other fees and expenses (including fees and expenses of counsel
and investment bankers) related to such Asset Sale, (ii) provisions for all
taxes payable as a result of such Asset Sale without regard to the consolidated
results of operations of the Company and its Restricted Subsidiaries, taken as a
whole (after taking into account any available offsetting tax credits or
deductions and an tax sharing arrangements), (iii) payments made to repay
Indebtedness or any other obligation outstanding at the time of such Asset Sale
that either (A) is secured by a Lien on the property or assets sold or (B) is
required to be paid as a result of such sale and (iv) appropriate amounts to be
provided by the Company or any Restricted Subsidiary of the Company as a reserve
against any liabilities associated with such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as determined in
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conformity with GAAP, and (b) with respect to any issuance or sale of Capital
Stock, the proceeds of such issuance or sale in the form of cash or cash
equivalents, including payments in respect of deferred payment obligations (to
the extent corresponding to the principal, but not interest, component thereof)
when received in the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary of the Company) and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
"Notes" means any of the Notes as defined in the first recital
of this Indenture and more particularly means any Notes authenticated and
delivered under this Indenture.
"Officer's Certificate" means a certificate signed by the
chairman, the president, a Vice President, the treasurer, an assistant
treasurer, the secretary or an assistant secretary of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, including an employee of the Company, and who
shall be acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Notes;
provided that, if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Notes, except to the extent provided in Sections 1302
and 1303, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Thirteen; and
(iv) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands the Notes are valid obligations of the Company;
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14
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by Section 313 of the TIA, Notes
owned by the Company or any other obligor upon the Notes or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which the
Trustee actually knows to be so owned shall be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any Affiliate of the Company or such other
obligor.
"Participant" means, with respect to the Depositary or its
nominee, an institution that has an account therewith.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (and premium,
if any) or interest on any Notes on behalf of the Company. The initial Paying
Agent shall be the Trustee.
"Payment Account" has the meaning specified in Section 402.
"Permitted Business" means any business involving voice, data
and other telecommunications services.
"Permitted Indebtedness" has the meaning specified in Section
1011(b).
"Permitted Investment" means (i) an Investment in a
Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into, or transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary; (ii) any Investment in Marketable Securities or
Pledged Securities; (iii) payroll, travel and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated as
expenses in accordance with GAAP; (iv) loans or advances to officers and
employees made in the ordinary course of business that do not in the aggregate
exceed $1 million at any time outstanding; (v) stock, obligations or securities
received in satisfaction of judgments; (vi) Investments in any Person received
as consideration for Asset Sales to the extent permitted under Section 1017;
(vii) Investments in any Person at any one time outstanding (measured on the
date each such Investment was made without giving effect to subsequent changes
in value) in an aggregate amount not to exceed the greater of (A) $15 million or
(B) 5% of the Company's total consolidated assets; (viii) Investments in
deposits with respect to leases or utilities provided to third parties in the
ordinary course of business; (ix) Investments in Currency Agreements and
Interest Rate Agreements on commercially reasonable terms entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of business
in connection with the operation of the business of the Company or its
Restricted Subsidiaries; provided that such agreements do not increase the
Indebtedness of the obligor outstanding at any
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time other than as a result of fluctuations in foreign currency exchange rates
or interest rates or by reason of fees, indemnities and compensation payable
thereunder; (x) repurchases or redemptions by the Company of Capital Stock from
officers and other employees of the Company or any of its Subsidiaries or their
authorized representatives upon the death, disability or termination of
employment of such individuals, in an aggregate amount not exceeding $1 million
in any calendar year and $3 million from the date of this Indenture; and (xi)
Investments in evidences of Indebtedness, securities or other property received
from another Person by the Company or any of its Restricted Subsidiaries in
connection with any bankruptcy proceeding or by reason of a composition or
readjustment of debt or a reorganization of such Person or as a result of
foreclosure, perfection or enforcement of any Lien in exchange for evidences of
Indebtedness, securities or other property of such Person held by the Company or
any of its Subsidiaries, or for other liabilities or obligations of such Person
to the Company or any of its Subsidiaries that were created, in accordance with
the terms of this Indenture.
"Permitted Liens" means (i) Liens for taxes, assessments,
governmental charges or claims that are being contested in good faith by
appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made; (ii) statutory Liens of landlords
and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or
other similar Liens arising in the ordinary course of business and with respect
to amounts not yet delinquent or being contested in good faith by appropriate
legal proceedings promptly instituted and diligently conducted and for which a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made; (iii) Liens incurred or deposits made
in the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security; (iv) Liens incurred
or deposits made to secure the performance of tenders, bids, leases, statutory
or regulatory obligations, bankers' acceptances, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other
obligations of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (v) easements,
rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially
interfere with the ordinary course of business of the Company or any of its
Restricted Subsidiaries; (vi) Liens (including extensions and renewals thereof)
upon real or personal property purchased or leased after the Closing Date;
provided that (a) such Lien is created solely for the purpose of securing
Indebtedness Incurred in compliance with Section 1011 (1) to finance the cost
(including the cost of design, development, construction, acquisition,
installation or integration) of the item of property or assets subject thereto
and such Lien is created prior to, at the time of or within six months after the
later of the acquisition, the completion of construction or the commencement of
full operation of such property or (2) to refinance any Indebtedness previously
so secured, (b) the principal amount of the Indebtedness secured by such Lien
does not exceed 100% of such cost and (c) any such Lien shall not extend to or
cover any property or assets other than such item of property or assets and any
improvements on such item; (vii) leases or subleases granted to others that do
not materially interfere with the ordinary course of business of the Company and
its Restricted Subsidiaries, taken as a whole; (viii) Liens encumbering property
or assets under construction arising from progress or partial payments by a
customer of the Company or its Restricted Subsidiaries relating
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to such property or assets; (ix) any interest or title of a lessor in the
property subject to any Capitalized Lease Obligation or operating lease; (x)
Liens arising from filing Uniform Commercial Code financing statements regarding
leases; (xi) Liens on property of, or on shares of stock or Indebtedness of, any
corporation existing at the time such corporation becomes, or becomes a part of,
any Restricted Subsidiary; provided that such Liens do not extend to or cover
any property or assets of the Company or any Restricted Subsidiary other than
the property or assets acquired and were not created in contemplation of such
transaction; (xii) Liens in favor of the Company or any Restricted Subsidiary;
(xiii) Liens arising from the rendering of a final judgment or order against the
Company or any Restricted Subsidiary of the Company that does not give rise to
an Event of Default; (xiv) Liens securing reimbursement obligations with respect
to letters of credit that encumber documents and other property relating to such
letters of credit and the products and proceeds thereof; (xv) Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods; (xvi) Liens
encumbering customary initial deposits and margin deposits and other Liens that
are either within the general parameters customary in the industry or incurred
in the ordinary course of business, in each case, securing Indebtedness under
Interest Rate Agreements and Currency Agreements; (xvii) Liens arising out of
conditional sale, title retention, consignment or similar arrangements for the
sale of goods entered into by the Company or any of its Restricted Subsidiaries
in the ordinary course of business in accordance with the past practices of the
Company and its Restricted Subsidiaries prior to the Closing Date; (xviii) Liens
existing on the Closing Date or securing the Notes or any Guarantee of the
Notes; (xix) Liens granted after the Closing Date on any assets or Capital Stock
of the Company or its Restricted Subsidiaries created in favor of the Holders;
(xx) Liens securing Indebtedness which is incurred to refinance secured
Indebtedness which is permitted to be Incurred under clause (viii) of paragraph
(b) of Section 1011; provided that such Liens do not extend to or cover any
property or assets of the Company or any Restricted Subsidiary other than the
property or assets securing the Indebtedness being refinanced; and (xxi) Liens
securing Indebtedness under Credit Facilities incurred in compliance with clause
(iv) of paragraph (b) of Section 1011.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge Account" means an account established with the Trustee
in its name as Trustee hereunder pursuant to the terms of the Pledge Agreement
for the deposit of the Pledged Securities purchased by the Company with a
portion of the net proceeds from the Offering.
"Pledge Agreement" means the Collateral Pledge and Security
Agreement, dated as of the date of this Indenture, from the Company to the
Trustee, governing the Pledge Account and the disbursement of funds therefrom.
"Pledged Securities" means the securities purchased by the
Company with a portion of the net proceeds from the Offering, which shall
consist of U.S. Government Obligations, to be deposited in the Pledge Account.
The Pledged Securities may be held in book-entry form through State Street Bank
and Trust Company acting as securities intermediary.
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"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations, rights or other equivalents (however
designated, whether voting or non-voting) of such Person's preferred or
preference stock, whether now outstanding or issued after the date of the
Indenture, including, without limitation, all series and classes of such
preferred or preference stock.
"Private Placement Legend" has the meaning specified in
Section 202.
"Pro Forma Consolidated Cash Flow" means, for any period, the
Consolidated Cash Flow of the Company for such period calculated on a pro forma
basis to give effect to any Asset Disposition or Asset Acquisition not in the
ordinary course of business (including acquisitions of other Persons by merger,
consolidation or purchase of Capital Stock) during such period as if such Asset
Disposition or Asset Acquisition had taken place on the first day of such
period.
"Public Equity Offering" means an underwritten primary public
offering of Common Stock of the Company pursuant to an effective registration
statement under the Securities Act.
"Purchase Money Indebtedness" means the principal of, premium,
if any, and interest on, and any other payment obligations in respect of, any
Indebtedness of the Company incurred to finance the purchase of plant, property,
equipment, machinery or similar assets (including, without limitation,
indebtedness for money borrowed for such purpose and indebtedness in respect of
installment payment arrangements).
"Purchase Price" has the meaning set forth in Section 1010.
"Qualified Institutional Buyers" or "QIBs" has the meaning set
forth in Section 201.
"Redeemable Stock" means any class or series of Capital Stock
of any Person that by its terms (or by the terms of any security into which it
is exchangeable) or otherwise is (i) required to be redeemed on or prior to the
date that is 123 days after the date of the Stated Maturity of the Notes, (ii)
redeemable at the option of the holder of such class or series of Capital Stock
at any time on or prior to the date that is 123 days after the date of the
Stated Maturity of the Notes or (iii) convertible into or exchangeable for
Capital Stock referred to in clause (i) or (ii) above or Indebtedness having a
scheduled maturity on or prior to the date that is 123 days after the date of
the Stated Maturity of the Notes; provided that any Capital Stock that would not
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constitute Redeemable Stock but for provisions thereof giving holders thereof
the right to require such Person to repurchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring on or prior
to the date that is 123 days after the date of the Stated Maturity of the Notes
shall not constitute Redeemable Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Sections 1010 and 1017
and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provisions, on or prior to
the date that is 123 days after the date of the Company's repurchase of such
Notes as are required to be repurchased pursuant to Sections 1010 and 1017.
"Redemption Date", when used with respect to any Note to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Register" and "Registrar" have the respective meanings
specified in Section 305.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Indenture, by and between the Initial
Purchasers and the Company, concerning the registration and exchange of the
Notes, a conformed copy of which has been delivered to the Trustee.
"Registration Statement" means the Registration Statement as
defined in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the January 1 or July 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificated Notes" has the meaning specified in
Section 201.
"Regulation S Global Notes" has the meaning specified in
Section 201.
"Regulation S Permanent Global Notes" has the meaning
specified in Section 201.
"Regulation S Temporary Global Notes" has the meaning
specified in Section 201.
"Responsible Officer", when used with respect to the Trustee,
means any officer of its corporate trust department or similar group having
direct responsibility for the administration of this Indenture and also means,
with respect to a particular corporate trust
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matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Payments" has the meaning specified in Section
1012.
"Restricted Period" has the meaning specified in Section 201.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144A Certificated Notes" has the meaning specified in
Section 201.
"Rule 144A Global Notes" has the meaning specified in Section
201.
"Sale-Leaseback Transaction" of any person means an
arrangement with any lender or investor or to which such lender or investor is a
party providing for the leasing by such person of any property or asset of such
person which has been or is being sold or transferred by such person after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangements may be terminated by the lessee
without payment of a penalty.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the Shelf Registration as
defined in the Registration Rights Agreement.
"Significant Subsidiary" means a Restricted Subsidiary that is
a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under
the Securities Act and the Exchange Act.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means (i) with respect to any debt security,
the date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person and
one or more other Subsidiaries of such Person.
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"Telecommunications Assets" means, with respect to any Person,
equipment used in the telecommunications business or ownership rights with
respect to IRUs, MAOUs or minimum investment units (or similar ownership
interests) in fiber optic cable and international or domestic telecommunications
switches or other transmission facilities (or Common Stock of a Person that
becomes a Restricted Subsidiary, the Assets of which consist primarily of any
such Telecommunications Assets), in each case purchased or acquired through a
Capitalized Lease Obligation by the Company or a Restricted Subsidiary after the
Closing Date.
"Tested Transaction" has the meaning stated in the definition
of "United States Dollar Equivalent".
"TMG" means Telecommunications Management Group, Inc., a
company that has provided consulting services to the Company from time to time
and of which two executive officers of the Company are co-founders and
significant shareholders.
"Trade Payables" means any accounts payable or any other
indebtedness or monetary obligation to trade creditors created, assumed or
Guaranteed by the Company or any of its Restricted Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods and
services.
"Transaction Date" means, with respect to the Incurrence of
any Indebtedness by the Company or any of its Restricted Subsidiaries, the date
such Indebtedness is to be Incurred and, with respect to any Restricted Payment,
the date such Restricted Payment is to be made.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Uniform Commercial Code" means the Uniform Commercial Code as
in effect in New York State.
"United States Dollar Equivalent" means, with respect to any
monetary amount in a currency other than the United States dollar, at any time
for the determination thereof, the amount of United States dollars obtained by
converting such foreign currency involved in such computation into United States
dollars at the spot rate for the purchase of United States dollars with the
applicable foreign currency as quoted by Reuters at approximately 11:00 a.m.
(New York City time) on the date not more than two business days prior to such
determination. For purposes of determining whether any Indebtedness can be
incurred (including Permitted Indebtedness), any Investment can be made and any
transaction described in Section 1015 can be undertaken (a "Tested
Transaction"), the United States Dollar Equivalent of such Indebtedness,
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Investment or transaction described in Section 1015 will be determined on the
date Incurred, made or undertaken and no subsequent change in the United States
Dollar Equivalent shall cause such Tested Transaction to have been Incurred,
made or undertaken in violation of this Indenture.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Restricted Subsidiary of the Company (including any newly acquired or newly
formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, the Company or any Restricted Subsidiary; provided (A) that the Subsidiary
to be so designated has total assets of $1,000 or less or (B) if such Subsidiary
has assets greater than $1,000, that such designation would be permitted under
Section 1012, and such Subsidiary is not liable, directly or indirectly, with
respect to any Indebtedness other than Unrestricted Subsidiary Indebtedness. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of the Company; provided that immediately after giving effect to such
designation (x) the Company could Incur $1.00 of additional Indebtedness under
the first paragraph of Section 1011 and (y) no Default or Event of Default shall
have occurred and be continuing. Any such designation by the Board of Directors
shall be evidenced to the Trustee by promptly filing with the Trustee a copy of
the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions.
"Unrestricted Subsidiary Indebtedness" means Indebtedness of
any Unrestricted Subsidiary (i) as to which neither the Company nor any
Restricted Subsidiary is directly or indirectly liable (by virtue of the Company
or any such Restricted Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to, such Indebtedness), and (ii) which, upon the
occurrence of a default with respect thereto, does not result in, or permit any
holder of any Indebtedness of the Company or any Restricted Subsidiary to
declare, a default on such Indebtedness of the Company or any Restricted
Subsidiary or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
"U.S. Person" has the meaning given to such term in Regulation
S under the Securities Act.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
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"Wholly Owned", with respect to any Subsidiary, means a
Subsidiary of the Company if all of the outstanding Capital Stock in such
Subsidiary (other than any director's qualifying shares or Investments by
foreign nationals mandated by applicable law) is owned by the Company or one or
more Wholly Owned Subsidiaries of the Company.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by
any Person, and the date of holding the same, shall be proved by the Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
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Act, but the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall b the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Notes have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Notes shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 105. Notices, Etc., to Trustee, Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture, or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other
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Holders. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and "agreements" in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any
Notes Registrar and their successors hereunder, and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
This Indenture and the Notes shall be governed by and
construed in accordance with the laws of the State of New York. Upon the
issuance of Exchange Notes, if any, or the effectiveness of the Shelf
Registration Statement, this Indenture will be subject to the provisions of the
Trust Indenture Act that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions. Each of the parties
hereto submits to the jurisdiction of the U.S. federal and any New York state
court located in the Borough of Manhattan, The City
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and State of New York with respect to any actions brought against it as
defendant in any suit, action or proceeding arising out of or relative to this
Indenture or the Notes and waives any rights to which it may be entitled on
account of place of residence or domicile.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Note shall not
be a Business Day, then (notwithstanding any other provision of this Indenture
or of the Notes) payment of principal (or premium, if any) or interest need not
be made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on such Interest Payment Date, Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form annexed hereto as Exhibit A with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture. The Notes may have notations, legends
or endorsements required by law, stock exchange agreements to which the Company
is subject or usage. The Company shall approve the form of the Notes and any
notation, legend or endorsement on the Notes. Each Note shall be dated the date
of its authentication.
The terms and provisions contained in the form of the Notes
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Notes offered and sold to qualified institutional buyers
("Qualified Institutional Buyers" or "QIBs") in reliance on Rule 144A under the
Securities Act shall be issued initially in the form of one or more permanent
global Notes in registered form, substantially in the form set forth in Exhibit
A (the "Rule 144A Global Notes"), registered in the name of the Depositary or
the nominee of the Depositary, deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Rule 144A Global
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, in
accordance with the instructions given by the Holder thereof, as hereinafter
provided.
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Notes offered and sold in offshore transactions in reliance on
Regulation S under the Securities Act shall be issued initially in the form of
one or more temporary global Notes ("Regulation S Temporary Global Note") in
registered form substantially in the form set forth in Exhibit A, registered in
the name of the Depositary or the nominee of the Depositary, deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. At any time following
March 9, 1998 (the "Restricted Period"), upon receipt by the Trustee and the
Company of a certificate substantially in the form of Exhibit B hereto, one or
more permanent global Notes in registered form substantially in the form set
forth in Exhibit A (the "Regulation S Permanent Global Notes"; and together with
the Regulation S Temporary Global Notes, the "Regulation S Global Notes"), duly
executed by the Company and authenticated by the Trustee as hereinafter
provided, shall be deposited with the Trustee, as custodian for the Depositary,
and the Registrar shall reflect on its books and records the date and a decrease
in the principal amount of the Regulation S Temporary Global Note in an amount
equal to the principal amount of the beneficial interest in the Regulation S
Temporary Global Note transferred.
Notes issued pursuant to Section 312 in exchange for interests
in Rule 144A Global Notes shall be issued in the form of permanent certificated
Notes in registered form in substantially the form set forth in Exhibit A (the
"Rule 144A Certificated Notes"). Notes issued pursuant to Section 312 in
exchange for interests in the Regulation S Global Notes shall be in the form of
permanent certificated Notes in registered form substantially in the form set
forth in Exhibit A (the "Regulation S Certificated Notes").
The Regulation S Certificated Notes and Rule 144A Certificated
Notes are sometimes collectively herein referred to as the "Certificated Notes".
The Rule 144A Global Notes and the Regulation S Global Notes are sometimes
collectively referred to herein as the "Global Notes". Ownership of beneficial
interests in Global Notes will be limited to Participants or Indirect
Participants.
The definitive Notes shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
SECTION 202. Restrictive Legends.
Unless and until a Note is exchanged for an Exchange Note in
connection with an effective Registration Statement pursuant to the Registration
Rights Agreement, Rule 144A Global Notes, Regulation S Temporary Global Notes
and each Rule 144A Certificated Note shall bear the following legend (the
"Private Placement Legend") on the face thereof:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED,
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TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT
PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR NOTE OF THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR NOTE OF
THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESTRICTED PERIOD") OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE AND THE REGISTRAR
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER, IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM
APPEARING ON THE REVERSE SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN
THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE SIDE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESTRICTED PERIOD. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each Global Note, whether or not an Exchange Note, shall also
bear the following legend on the face thereof:
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UNLESS THIS CERTIFICATE IS PRESENTED, BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTIONS 311 AND 312 OF THE INDENTURE.
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $300,000,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 303, 304,
305, 306, 906, 1010, 1017 or 1108.
The Initial Notes shall be known and designated as the "10
1/2% Senior Notes due 2008" of the Company and the Exchange Notes shall be known
and designated as the "10 1/2% Series B Senior Notes due 2008" of the Company.
The Stated Maturity of the principal of the Notes shall be January 15, 2008 and
they shall bear interest at the rate of 10 1/2% per annum, payable on January 15
and July 15 of each year, commencing on July 15, 1998, until the principal
thereof is paid or duly provided for Interest on the Notes will accrue from the
most recent Interest Payment Date for which interest has been paid or, if no
interest has been paid, from the Issue Date.
The principal of (and premium and Liquidated Damages, if any)
and interest on the Notes shall be payable at the office or agency of the
Company maintained for such purpose pursuant to Section 1002, or, at the option
of the Company, interest may be paid by check mailed
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to addresses of the Persons entitled thereto as such addresses shall appear on
the Register; provided that all payments with respect to the Global Notes and
Certificated Notes the Holders of which have given wire transfer instructions to
the Company will be required to be made by wire transfer of immediately
available funds to the accounts specified by the Holders thereof.
The Notes shall be redeemable as provided in Article Eleven.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
chairman, its president, chief financial officer or any Vice President. The
signature of any of these officers on the Notes may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Notes.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Initial Notes executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Initial Notes directing the Trustee to
authenticate the Notes and certifying that all conditions precedent to the
issuance of Notes contained herein have been fully complied with, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Initial Notes. On Company Order, the Trustee shall authenticate for
original issue Exchange Notes in an aggregate principal amount not to exceed
$300,000,000; provided that such Exchange Notes shall be issuable only upon the
valid surrender for cancellation of Initial Notes of a like aggregate principal
amount in accordance with an Exchange Offer pursuant to the Registration Rights
Agreement and a Company Order for the authentication of such securities
certifying that all conditions precedent to the issuance have been complied with
(including the effectiveness of a registration statement related thereto). In
each case, the Trustee shall be entitled to receive an Officer's Certificate and
an Opinion of Counsel of the Company that it may reasonably request in
connection with such authentication of Notes. Such order shall specify the
amount of Notes to be authenticated and the date on which the original issue of
Initial Notes or Exchange Notes is to be authenticated.
Each Note shall be dated the date of its authentication.
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No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication, substantially in the form provided for in Exhibit
A, duly executed by the Trustee by manual signature of an authorized officer,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety in a transaction or a series of transactions to any Person, and the
successor Person resulting from such consolidation, or surviving such merger, or
into which the Company shall have been merged, or the Person which shall have
received a conveyance, transfer, lease or other disposition as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to
Article Eight, any of the Notes authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Notes executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Notes surrendered for such exchange and of like principal amount;
and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Notes as specified in such request for the purpose of
such exchange. If Notes shall at any time be authenticated and delivered in any
new name of a successor Person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Notes, such successor
Person, at the option of the Holders but without expense to them, shall provide
for the exchange of all Notes at the time Outstanding for Notes authenticated
and delivered in such new name.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as conclusively evidenced by their
execution of such Notes.
If temporary Notes are issued, the Company shall cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 1002 without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and upon Company Order the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
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SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. At all reasonable times, the Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed as security registrar (the
"Registrar") for the purpose of registering Notes and transfers of Notes as
herein provided.
Upon surrender for registration of transfer of any Note at the
office or agency of the Company designated pursuant to Section 1002, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Notes of any
authorized denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination and of a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Holder making the
exchange is entitled to receive; provided that no exchange of Initial Notes for
Exchange Notes shall occur until an Exchange Offer Registration Statement shall
have been declared effective by the Commission, the Trustee shall have received
an Officer's Certificate confirming that the Exchange Offer Registration
Statement has been declared effective by the Commission and the Initial Notes to
be exchanged for the Exchange Notes shall be cancelled by the Trustee.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall be duly endorsed and be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 304, 906, 1010, 1017 or 1108 not
involving any transfer.
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The Company shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the selection of Notes to be redeemed under Section 1104
and ending at the close of business on the day of such mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any Note
so selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee, or
(ii) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company
and the Trustee such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Note has been acquired by a bona fide purchaser, the Company
shall execute and upon Company Order the Trustee shall authenticate and deliver,
in exchange for any such mutilated Note or in lieu of any such destroyed, lost
or stolen Note, a new Note of like tenor and principal amount, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 306 in lieu of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.
The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name such Note (or Predecessor Notes) is registered at the close of
business on the Regular Record Date (or if a Predecessor Note is outstanding on
such Regular Record Date, such Predecessor Note) for such interest at the office
or agency of the Company maintained for such purpose pursuant to Section 1002
or, at the option of the Company, interest may be paid by check mailed to the
address of
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the Person entitled thereto as such address shall appear on the Register;
provided that all payments with respect to Global Notes and Certificated Notes
the Holders of which have given wire transfer instructions to the Company will
be required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the Regular Record Date by virtue
of having been such Holder, and such defaulted interest and (to the extent
lawful) interest on such defaulted interest at the rate borne by the Notes (such
defaulted interest and interest thereon herein collectively called "Defaulted
Interest") may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a special
record date ("Special Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given in the manner provided for in Section 106 not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so given, such Defaulted Interest shall be paid to the Persons in
whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 307, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall
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carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
SECTION 308. Persons Deemed Owners.
Prior to the due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if any)
and (subject to Sections 305 and 307) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to, and promptly cancelled by, the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Notes previously authenticated hereunder
which the Company has not issued and sold, and all Notes so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures and certification of their disposal delivered to the
Company unless by Company Order the Company shall direct that cancelled Notes be
returned to it after being appropriately designated as cancelled.
SECTION 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 311. Book-Entry Provisions for Global Notes.
(a) Each Global Note initially shall (i) be registered in the
name of the Depositary for such Global Notes or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in Section 202.
Except as provided in Section 311(b), owners of beneficial
interests in the Global Notes will not have Notes registered in their names,
will not receive physical delivery of Notes in
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certificated form and will not be considered the registered owner or Holder
thereof under this Indenture for any purpose.
Members of, or Participants in, the Depositary shall have no
rights under this Indenture with respect to any Global Note, and the Depositary
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Participants, the operation of
customary practices governing the exercise of the rights of a beneficial owner
of any Note. The registered Holder of a Global Note may grant proxies and
otherwise authorize any person, including Participants and persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under this Indenture or the Notes
(b) Interests of beneficial owners in a Global Note may be
transferred in accordance with the applicable rules and procedures of the
Depositary and the provisions of Section 312. Transfers of a Global Note shall
be limited to transfers of such Global Note in whole, but not in part, to the
Depositary, a nominee of the Depositary, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
in accordance with the rules and procedures of the Depositary and the provisions
of Section 312 hereof. Rule 144A Certificated Notes and Regulation S
Certificated Notes shall be transferred to beneficial owners in exchange for
their beneficial interests in the Rule 144A Global Note(s) or the Regulation S
Global Note(s), as the case may be, if (i) the Depositary (A) notifies the
Company that it is unwilling or unable to continue as depository for the Global
Notes and the Company thereupon fails to appoint a successor depository or (B)
has ceased to be clearing agency registered under the Exchange Act; (ii) there
shall have occurred and be continuing an Event of Default with respect to the
Notes; or (iii) the Company, at its option, notifies the Trustee in writing that
it elects to cause issuance of the Notes in certificated form; provided that in
no event shall the Regulation S Temporary Global Note be exchanged by the
Company for Certificated Notes prior to (x) the end of the Restricted Period and
(y) receipt by the Trustee and the Company of a certificate substantially in the
form of Exhibit B hereto. In connection with a transfer of an entire Global Note
to beneficial owners pursuant to clause (i), (ii) or (iii) of this paragraph
(b), the applicable Global Note shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the applicable Global Note, an equal
aggregate principal amount of Rule 144A Certificated Notes (in the case of the
Rule 144A Global Note) or Regulation S Certificated Notes (in the case of the
Regulation S Global Note), as the case may be, of authorized denominations.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
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applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) Any Rule 144A Certificated Note delivered in exchange for
an interest in the Rule 144A Global Note pursuant to paragraph (b) of this
Section shall, unless such exchange is made on or after the date which is two
years following the date hereof, or such shorter period of time as permitted
under Rule 144(k) under the Securities Act, and except as otherwise provided in
Section 312, bear the Private Placement Legend.
SECTION 312. Transfer Provisions.
Unless and until a Note is exchanged for an Exchange Note in
connection with an effective Registration Statement pursuant to the Registration
Rights Agreement, the following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a Rule 144A
Certificated Note or an interest in the Rule 144A Global Note to a QIB
(excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (x) Rule 144A
Certificated Notes, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Note stating, or
has otherwise advised the Company and the Registrar in writing, that it
is purchasing the Note for its own account (or an account with respect
to which it exercises sole investment discretion) and that each of it
and any such account is a QIB, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A or (y) an interest in the Rule 144A Global Note,
the transfer of such interest may be effected only through the
book-entry system maintained by the Depositary.
(ii) If the proposed transferee is a Participant, and the Note
to be transferred consists of Rule 144A Certificated Notes, upon
receipt by the Registrar of the documents referred to in clause (i)(x)
and instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Rule
144A Global Note in an amount equal to the principal amount of the Rule
144A Certificated Notes to be transferred, and the Trustee shall cancel
the Rule 144A Certificated Note so transferred.
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(b) Transfers of Interests in the Regulation S Temporary
Global Note to QIBs. The following provisions shall apply with respect to
registration of any proposed transfer of interests in the Regulation S Temporary
Global Note:
(i) The Registrar shall register the transfer of any Note (x)
if the proposed transferee is a Non-U.S. Person and the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit C hereto or (y) if the proposed transferee is a
QIB and the proposed transferor has checked the box provided for on the
form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that each of it and
any such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is a Participant, upon receipt
by the Registrar of the documents referred to in clause (i)(x) above
and instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Rule
144A Global Note in an amount equal to the principal amount of the
Regulation S Temporary Global Note to be transferred, and the Trustee
shall decrease the amount of the Regulation S Temporary Global Note.
(c) Transfers of Interests in the Regulation S Permanent
Global Note or Regulation S Certificated Notes to U.S. Persons. The following
provisions shall apply with respect to registration of any proposed Transfer of
interests in the Regulation S Permanent Global Note or Regulation S Certificated
Notes to U.S. Persons:
(i) The Registrar shall register the transfer of any such
Note without requiring any additional certification.
(ii) (A) If the proposed transferor is a Participant holding a
beneficial interest in the Regulation S Permanent Global Note, upon
receipt by the Registrar of instructions in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the Regulation S Permanent Global Note in an amount
equal to the principal amount of the beneficial interest in the
Regulation S Permanent Global Not to be transferred, and (B) if the
proposed transferee is a Participant, upon receipt by the Registrar of
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Rule
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144A Global Note in an amount equal to the principal amount of the
Regulation S Certificated Notes or the Regulation S Permanent Global
Note, as the case may be, to be transferred, and the Trustee shall
cancel the Certificated Note, if any, so transferred or decrease the
amount of the Regulation S Permanent Global Note.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Note to a Non-U.S.
Person:
(i) Prior to March 9, 1998, the Registrar shall register any
proposed transfer of a Note to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit C hereto from the
proposed transferor.
(ii) On and after March 9, 1998, the Registrar shall register
any proposed transfer to any Non-U.S. Person if the Note to be
transferred is a Rule 144A Certificated Note or an interest in the Rule
144A Global Note, upon receipt of a certificate substantially in the
form of Exhibit C hereto from the proposed transferor.
(iii) (A) If the proposed transferor is a Participant holding
a beneficial interest in the Rule 144A Global Note, upon receipt by the
Registrar of the documents, if any, required by paragraph (ii) and
instructions in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the
date and a decrease in the principal amount of the Rule 144A Global
Note in an amount equal to the principal amount of the beneficial
interest in the Rule 144A Global Note to be transferred, and (B) if the
proposed transferee is a Participant, upon receipt by the Registrar of
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount of
the Rule 144A Certificated Notes or the Rule 144A Global Note, as the
case may be, to be transferred, and the Trustee shall cancel the
Certificated Note, if any, so transferred or decrease the amount of the
Rule 144A Global Note.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless either (i)(A) the circumstances contemplated by the fourth paragraph of
Section 201 or Section 312(d)(ii) exist or (B) the requested transfer is after
the time period referred to in Rule 144(k) under the Securities Act or (ii)
there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it shall transfer such Note only as provided in this
Indenture. The Registrar shall not register a transfer of any Note unless such
transfer complies with the restrictions on transfer of such
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Note set forth in this Indenture. In connection with an transfer of Notes, each
Holder agrees by its acceptance of the Notes to furnish the Registrar or the
Company such certifications, legal opinions or other information as either of
them may reasonably require to confirm that such transfer is being made pursuant
to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Registrar shall not be
required to determine (but may rely on a determination made by the Company with
respect to) the sufficiency of any such certifications, legal opinions or other
information.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 311 or this Section
312. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
ARTICLE FOUR y
SATISFACTION AND DISCHARGE y
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Notes as expressly provided for herein or pursuant hereto) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(i) either
(A) All Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Notes for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Notes not theretofore delivered
to the Trustee for cancellation (other than Notes which have
been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306)
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
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(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose in an amount
sufficient to pay and discharge the entire Indebtedness on
such Notes not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any), interest
and Liquidated Damages, if any, to the date of such deposit
(in the case of Notes which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be,
together with irrevocable instructions from the Company
directing the Trustee to apply such funds to the payment
thereof at Stated Maturity or redemption, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606 and,
if money shall have been deposited with the Trustee pursuant to subclause (b) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
On or prior to the effective date of this Indenture, the
Trustee shall establish a segregated, non-interest bearing corporate trust
account (the "Payment Account") maintained by the Trustee for the benefit of the
Holders in which all amounts paid to the Trustee for the benefit of the Holders
in respect of the Notes will be held (except for amount designated to be
deposited into the Pledge Account) and from which the Trustee (if the Trustee is
the Paying Agent) shall make payments to the Holders in accordance with this
Indenture and the Notes. Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to Section 401 and
otherwise pursuant to this Indenture shall be held in trust and applied by it,
in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE FIVE
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REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest or Liquidated
Damages, if any, on any Note when due and payable as to any Interest
Payment Date falling on or prior to January 15, 2001; or
(2) default in the payment of interest or Liquidated Damages,
if any, on any Note when due and payable as to any Interest Payment
Date following after January 15, 2001, and any such failure continued
for a period of 30 days; or
(3) default in the payment of the principal of (or premium,
if any, on) any Note at its Stated Maturity, upon acceleration,
redemption or otherwise; or
(4) default in the payment of principal or interest or
Liquidated Damages, if any, on any Note required to be purchased
pursuant to an Excess Proceeds Offer as described in Section 1017 or
pursuant to a Change of Control Offer as described in Section 1010; or
(5) failure to perform or comply with the provisions of
Section 801; or
(6) default in the performance or breach of any covenant or
agreement of the Company in this Indenture or under the Notes (other
than a default in the performance, or breach, of a covenant or
agreement which is specifically dealt with elsewhere in this Section),
and continuance of such default or breach for a period of 30
consecutive days after there has been given to the Company by the
Trustee or the Holders of at least 25% or more in aggregate principal
amount of the Notes then Outstanding a written notice specifying such
default or breach; or
(7) (A) there shall have occurred with respect to any issue
or issues of Indebtedness of the Company or any Restricted Subsidiary
having an outstanding principal amount of $5 million or more in the
aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, (I) an event of
default that has caused the Holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and
such Indebtedness has not been discharged in full or such acceleration
has not been rescinded or annulled by the expiration of any applicable
grace period and/or (II) the failure to make a principal payment at
the final (but not any interim) fixed Maturity Date thereon and such
defaulted payment shall not have been made, waived or extended by the
expiration of any applicable grace period; or
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(8) any final judgment or order (not covered by insurance)
for the payment of money in excess of $5 million in the aggregate for
all such final judgments or orders against all such Persons (treating
any deductibles, self-insurance or retention as not so covered) shall
be rendered against the Company or any Restricted Subsidiary and shall
not be paid or discharged, and there shall be any period of 30
consecutive days following entry of the final judgment or order that
causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to
exceed $5 million during which a stay of enforcement of such final
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(9) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any of its
Significant Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or
any of its Significant Subsidiaries or for all or substantially all of
the property and assets of the Company or any of its Significant
Subsidiaries or (C) the winding up or liquidation of the affairs of
the Company or any of its Significant Subsidiaries and, in each case,
such decree or order shall remain unstayed and in effect for a period
of 30 consecutive days; or
(10) the Company or any of its Significant Subsidiaries (A)
commences a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consents to the
entry of an order for relief in an involuntary case under any such
law, (B) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any of its Significant Subsidiaries
or for all or substantially all of the property and assets of the
Company or any of its Significant Subsidiaries or (C) effects any
general assignment for the benefit of creditors; or
(11) the Company asserts in writing that the Pledge Agreement
ceases to be in full force and effect before payment in full of the
obligations thereunder.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(9) or 501(10)) occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Notes Outstanding by a notice in writing to the Company
(and to the Trustee if such notice given by such Holders), may, and the Trustee
at the request of such Holders shall, declare the principal of, premium, if
any, and accrued but unpaid interest and Liquidated Damages, if any, on all the
Notes to be immediately due and payable. Upon any such declaration of
acceleration, such principal of, premium, if any, accrued interest and
Liquidated Damages, if any, shall become immediately due and payable. If an
Event of Default specified in Section 501(9) or 501(10) occurs, then the
principal of, premium, if any, accrued interest and Liquidated Damages, if any,
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
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At any time after a declaration of acceleration has been
made, the Holders of at least a majority in aggregate principal amount of the
Notes Outstanding, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) all existing Events of Default, other than the nonpayment
of amounts of principal of, premium, if any, accrued and unpaid
interest and Liquidated Damages, if any, on the Notes which have
become due solely by such declaration of acceleration, have been cured
or waived subject to the limitations set forth in Section 513; and
(2) the rescission, in the opinion of Counsel, would not
conflict with any judgment or decrees of a court of competent
jurisdiction.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Notes because an Event of Default
specified in Section 501(7) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has been discharged or the Holders
thereof have rescinded their declaration of acceleration in respect of such
Indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Company and countersigned
by the Holders of such Indebtedness or a trustee, fiduciary or agent for such
Holders, within 60 days after such declaration of acceleration in respect of
the Notes, and no other Event of Default has occurred during such 60-day period
which has not been cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any installment of
interest and Liquidated Damages, if any, on any Note when such
interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof,
the Company shall pay to the Trustee for the benefit of the Holders of such
Notes, the whole amount then due and payable on such Notes for principal (and
premium and Liquidated Damages, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest
and Liquidated Damages, if any, at the rate borne by the Notes, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, fees
expenses, disbursements and advances of the Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, interest or
Liquidated Damages, if any) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium and Liquidated Damages, if any) and interest
owing and unpaid in respect of the Notes and to file such other papers
or documents and take other actions as the Trustee may deem necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name and as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, fees, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any, or Liquidated Damages, if any) or interest, upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium and Liquidated Damages, if any) and interest
on the Notes in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Notes for
principal (and premium and Liquidated Damages, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
Except to enforce the right to receive payment of principal
or premium, if any, or interest or Liquidated Damages, if any, when due, no
Holder of any Notes shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless the following
conditions have been met:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Notes shall have made written request to the
Trustee to pursue the remedy in respect of such Event of Default in
its own name as trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee has failed to institute any such proceeding
for 60 days after its receipt of such notice, request and offer of
indemnity; and
(5) during such 60-day period, no direction inconsistent with
such written request has been given to the Trustee by the Holders of a
majority or more in aggregate principal amount of the Outstanding
Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment, as provided herein (including, if applicable, Article
Thirteen) and in such Note of the principal of (and premium and Liquidated
Damages, if any) and (subject to Section 307) interest on such Note on the
respective Stated Maturities expressed in such Note (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment on or after such Stated Maturities, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter
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existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee,
provided that
(1) the Trustee need not take any action that conflicts with
law or this Indenture, which might involve the Trustee in personal
liability or which, in the good faith determination of the Trustee,
may be unduly prejudicial to rights Holders not joining in the giving
of such direction, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes may on behalf of the Holders of all
the Notes waive any past default hereunder and its consequences, except a
default
(1) in respect of the payment of the principal of (or premium
or Liquidated Damages, if any) or interest on any Note, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no
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such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder,
the Trustee shall transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such Default hereunder of the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in the
case of a Default in the payment of the principal of (or premium, if any) or
interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders; and provided further that in the case of any Default of the character
specified in Section 501(7), no such notice to Holders shall be given until at
least 30 days after the occurrence thereof.
In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
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paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, may require and rely upon an
Officer's Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(9) any permissive right or power available to the Trustee
under this Indenture or any supplement hereto shall not be construed
to be a mandatory duty or obligation;
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(10) the Trustee shall not be charged with knowledge of any
matter (including any default, other than as described in Section
501(1), (2) or (3)) unless and except to the extent actually known to
a Responsible Officer of the Trustee or to the extent written notice
thereof is received by the Trustee at the Corporate Trust Office; and
(11) the Trustee shall have no liability for any inaccuracy
in the books or records of, or for any actions or omissions of, DTC,
Euroclear or CEDEL or any depository acting on behalf of any of them.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
The Trustee shall not be required to examine any of the
reports and documents filed with it pursuant to Sections 703 or 1009 to
determine whether or not the Company is in compliance with the covenants set
forth at Sections 1010 through 1021.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Notes.
The recitals contained in this Indenture and in the Notes,
except for the Trustees certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Notes and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Company
of Notes or the proceeds thereof.
SECTION 604. May Hold Notes.
The Trustee, any Paying Agent, any Registrar or any other
agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to TIA Sections
310(b) and 311, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder shall be
segregated from other funds. The Trustee shall be under no liability for
interest on any money received by it hereunder.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
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(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder and under the
Pledge Agreement (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture and under the Pledge
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without gross
negligence or bad faith on its part, arising out of or in connection
with the acceptance and administration of its duties under the Pledge
Agreement or the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(8) or (9), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation for such services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law; provided, however, that if any such amounts are not paid as
expenses of administration, they may be collected by the Trustee as amounts
payable to it pursuant to Section 506.
The provisions of this Section 606 shall survive the
termination of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50 million. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and
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surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 607, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Note for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of
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the Holders of a majority in aggregate principal amount of the Outstanding
Notes delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee and supersede the successor Trustee appointed by the
Company. If no successor Trustee shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Note for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to the
Holders in the manner provided for in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 609. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder (provided such corporation shall be otherwise qualified and eligible
under this Article), without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Notes shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such Notes.
In case at that time any of the Notes shall not have been authenticated, any
successor Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor Trustee. In all
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such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee shall
have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Notes in the name
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY
TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. Reports by Trustee.
Within 60 days after February 15 of each year commencing with
the first February 15 after the first issuance of Notes, the Trustee shall
transmit to the Holders, in the manner and to the extent provided in TIA
Section 313(c), a brief report dated as of such February 15 if required by TIA
Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act
of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from tim to time in such
rules and regulations;
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(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with, or merge with or
into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially
as an entirety in one transaction or a series of related transactions) to, any
Person or permit any Person to merge with or into the Company and the Company
shall not permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in the sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company or the Company and its Restricted
Subsidiaries, taken as a whole, to any other Person or Persons, unless:
(1) either (A) the Company shall be the continuing Person or
(B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that acquired or
leased such property and assets of the Company (i) shall be a
corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and (ii) shall
expressly assume, by an indenture supplemental hereto, duly executed
and delivered to the Trustee, all of the obligations of the Company
with respect to all the Notes and under this Indenture;
(2) immediately after giving effect to such transaction on a
pro forma basis, no Default or Event of Default shall have occurred
and be continuing;
(3) immediately after giving effect to such transaction on a
pro forma basis, the Company, or any Person becoming the successor
obligor of the Notes, shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company immediately
prior to such transaction;
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(4) immediately after giving effect to such transaction on a
pro forma basis, the Company, or any Person becoming the successor
obligor of the Notes, as the case may be, could Incur at least $1.00
of Indebtedness under paragraph (a) of Section 1011; and
(5) the Company delivers to the Trustee an Officer's
Certificate (attaching the arithmetic computations to demonstrate
compliance with clauses (3) and (4) above) and an Opinion of Counsel,
each stating that such consolidation, merger or transfer and such
supplemental indenture complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with;
provided, however, that clauses (3) and (4) above shall not apply if, in the
good faith determination of the Board of Directors of the Company, whose
determination shall be evidenced by a Board Resolution, the principal purpose
of such transaction is to change the state of incorporation of the Company; and
provided further that any such transaction shall not have as one of its
purposes the evasion of the foregoing limitations.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of the
Company with or into any other corporation or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and in the event of any such conveyance or transfer, the Company (which term
shall for this purpose mean the Person named as the "Company" in the first
paragraph of this Indenture or any successor Person which shall theretofore
become such in the manner described in Section 801), except in the case of a
lease, shall be discharged of all obligations and covenants under this
Indenture and the Notes and may be dissolved and liquidated.
SECTION 803. Notes to Be Secured in Certain Events.
If, upon any such consolidation of the Company with, or
merger of the Company into, any other corporation, or upon any conveyance,
lease or transfer of the property of the Company substantially as an entirety
to any other Person, any property or assets of the Company would thereupon
become subject to any Lien, then unless such Lien could be created pursuant to
Section 1016 without equally and ratably securing the Notes, the Company, prior
to or simultaneously with such consolidation, merger, conveyance, lease or
transfer, will, as to such property or assets, secure the Notes Outstanding
(together with, if the Company shall so determine any other Indebtedness of the
Company now existing or hereinafter created which is not subordinate in right
of payment to the Notes) equally and ratably with (or prior to) the
Indebtedness which upon such consolidation, merger, conveyance, lease or
transfer is to become secured as to such property or assets by such Lien, or
shall cause such Notes to be so secured.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default; or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of
Section 609; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action
shall not adversely affect the interests of the Holders in any
material respect; or
(6) to secure the Notes pursuant to the requirements of
Section 803 or Section 1016 or otherwise.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority
in aggregate principal amount of the Outstanding Notes, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;
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(ii) reduce the principal amount of, or premium, if any, or
interest on any Note or extend the time for payment of interest on, or
alter the redemption provisions of, any Note;
(iii) change the place or currency of payment of principal
of, or premium, if any, or interest on any Note;
(iv) impair the right of any Holder to receive payment of,
principal of and interest on such Holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment
on or after the Stated Maturity (or, in the case of a redemption, on
or after the Redemption Date) of any Note;
(v) reduce the percentage of Outstanding Notes the consent
of whose Holders is necessary to modify, amend, waive, supplement or
consent to take any action under this Indenture or the Notes;
(vi) waive a default in the payment of principal of,
premium, if any, or accrued and unpaid interest or Liquidated Damages,
if any, on the Notes;
(vii) reduce or change the rate or time for payment of
interest on the Notes;
(viii) reduce or change the rate or time for payment of
Liquidated Damages, if any;
(ix) modify any provisions of any Guarantees in a manner
adverse to the Holders; or
(x) modify any provisions of this Section 902 or Sections
513 and 1022, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Note
affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustees own
rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and upon Company Order authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Note affected
thereby, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest.
The Company covenants and agrees for the benefit of the
Holders that it shall duly and punctually pay the principal of (and premium and
Liquidated Damages, if any) and interest on the Notes in accordance with the
terms of the Notes and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company shall maintain in The City of New York, an office
or agency where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The
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office of the Trustee located at 61 Broadway, New York, New York 10006 shall be
such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. In
addition, the Company shall maintain an office or agency where the Notes may be
presented or surrendered for payment (which shall be the Corporate Trust Office
of the Trustee, unless the Company shall designate and maintain some other
office or agency for one or more such purposes). The Company shall give prompt
written notice to the Trustee of any change in the location of any such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in The City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and any
change in the location of any such other office or agency.
SECTION 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it shall, on or before each due date of the principal of (or premium or
Liquidated Damages, if any) or interest on any of the Notes, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to
pay the principal of (or premium or Liquidated Damages, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Notes, it shall, on or before each due date of the principal of (or premium
or Liquidated Damages, if any) or interest on any Notes, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium and Liquidated
Damages, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee the Company shall promptly notify the
Trustee of such action or any failure so to act.
The Company shall cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section 1003, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of (and premium and Liquidated Damages, if any) or interest on Notes
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
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(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of
principal (and premium and Liquidated Damages, if any) or interest on
the Notes; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (or
premium or Liquidated Damages, if any) or interest on any Note and remaining
unclaimed for two years after such principal, premium, interest or Liquidated
Damages has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries as a whole and that
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or
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imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (b) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a lien (other
than a Permitted Lien) upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1006. Maintenance of Properties.
The Company shall cause all properties owned by the Company
or any Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and shall cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 1007. Insurance.
The Company shall at all times keep all of its and its
Subsidiaries properties which are of an insurable nature insured with insurers,
believed by the Company to be responsible, against loss or damage to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties.
SECTION 1008. Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officer's Certificate from the principal
executive officer, principal financial officer or principal accounting officer
to the effect that a review has been conducted of the activities of the Company
and the Company's performance under this Indenture, and that the Company has
fulfilled its obligations thereunder or, if there has been a default in the
fulfillment of any such obligation, specifying each such default and the nature
and status thereof. For purposes of this Section 1008(a), such compliance shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
(b) When any Default has occurred and is continuing under
this Indenture, or if the trustee for or the Holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed default (other than with respect to
Indebtedness in the principal amount of less than $1,000,000) shall deliver to
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the Trustee by registered or certified mail or by telegram, telex or facsimile
transmission an Officer's Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
(c) When any Registration Default (as defined in the
Registration Rights Agreement) occurs, the Company shall immediately deliver to
the Trustee by registered or certified mail or by telegram, telex or facsimile
transmission an Officer's Certificate specifying the nature of such
Registration Default. In addition, the Company shall deliver to the Trustee on
each Interest Payment Date during the continuance of a Registration Default and
on the Interest Payment Date following the cure of a Registration Default, an
Officer's Certificate specifying the amount of Liquidated Damages which have
accrued and which are then owing under the Registration Rights Agreement.
SECTION 1009. Provision of Financial Statements and Reports.
(a) After the Company has completed the Exchange Offer, the
Company shall file on a timely basis with the Commission, to the extent such
filings are accepted by the Commission and whether or not the Company has a
class of securities registered under the Exchange Act, the annual reports,
quarterly reports and other documents that the Company would be required to
file if it were subject to Section 13 or 15 of the Exchange Act. All such
annual reports shall include the geographic segment financial information
contemplated by Item 101(d) of Regulation S-K under the Securities Act, and all
such quarterly reports shall provide the same type of interim financial
information that, as of the date of this Indenture, is the Company's practice
to provide.
(b) The Company shall also be required (i) to file with the
Trustee, and provide to each Holder, without cost to such Holder, copies of
such reports and documents within 15 days after the date on which the Company
files such reports and documents with the Commission or the date on which the
Company would be required to file such reports and documents if the Company
were so required and (ii) if filing such reports and documents with the
Commission is not accepted by the Commission or is prohibited under the
Exchange Act, to supply at the Company's cost copies of such reports and
documents to any prospective Holder promptly upon request.
SECTION 1010. Repurchase of Notes upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder
shall have the right to require the Company to repurchase such Holder's Notes
in whole or in part (the "Change of Control Offer"), at a purchase price (the
"Purchase Price") in cash in an amount equal to 101% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to
the date of purchase (subject to the right of Holders of record to receive
interest on the relevant Interest Payment Date) (the "Change of Control
Payment") in accordance with the procedures set forth in paragraphs (c) and (d)
of this Section.
(b) [Reserved]
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(c) Within 30 days following any Change of Control, the
Company shall give to each Holder and the Trustee in the manner
provided in Section 106 a notice stating:
(i) that a Change of Control has occurred, that the Change
of Control Offer is being made pursuant to this Section 1010 and that
all Notes validly tendered will be accepted for payment;
(ii) the circumstances and relevant facts regarding such
Change of Control (including but not limited to information with
respect to pro forma historical income, cash flow and capitalization
after giving effect to such Change of Control);
(iii) the Purchase Price and date of purchase (which shall be
a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed) (the "Change of Control Payment Date");
(iv) that any Note not tendered will continue to accrue
interest pursuant to its terms;
(v) that, unless the Company defaults in the payment of
the Change of Control Payment, any Note accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest and
Liquidated Damages, if any, on and after the Change of Control Payment
Date;
(vi) that Holders electing to have any Note or portion
thereof purchased pursuant to the Change of Control Offer will be
required to surrender such Note, together with the form entitled
"Option of the Holder to Elect Purchase" on the reverse side of such
Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day immediately
preceding the Change of Control Payment Date;
(vii) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of
business on the third Business Day immediately preceding the Change of
Control Payment Date, a telegram, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of Notes
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Notes purchased; and
(vii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of
$1,000 or integral multiples thereof.
(d) [Reserved].
(e) On the Change of Control Payment Date, the Company
shall:
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(i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent money sufficient to pay
the purchase price of all Notes or portions thereof so accepted; and
(ii) deliver, or cause to be delivered, to the Trustee, all
Notes or portions thereof so accepted together with an Officer's
Certificate specifying the Notes or portions thereof accepted for
payment by the Company. The Paying Agent shall promptly mail, to the
Holders so accepted, payment in an amount equal to the purchase price,
and the Trustee shall promptly authenticate and mail to such Holders a
new Note equal in principal amount to any unpurchased portion of the
Notes surrendered; provided that each Note purchased and each new Note
issued shall be in a principal amount of $1,000 or integral multiples
thereof. The Company shall publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of
Control Payment Date. For purposes of this Section 1010, the Trustee
shall act as Paying Agent.
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes a Change of Control Offer
in the manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Company and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
The Company shall comply with Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in the event that a Change of Control
occurs and the Company is required to repurchase the Notes under this Section
1010.
SECTION 1011. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, Incur any Indebtedness; provided, however, that the
Company may Incur Indebtedness if immediately thereafter the ratio of (i) the
aggregate principal amount (or accreted value, as the case may be) of
Indebtedness of the Company and its Restricted Subsidiaries on a consolidated
basis outstanding as of the Transaction Date to (ii) the Pro Forma Consolidated
Cash Flow for the preceding two full fiscal quarters multiplied by two,
determined on a pro forma basis as if any such Indebtedness had been Incurred
and the proceeds thereof had been applied at the beginning of such two fiscal
quarters, would be greater than zero and less than 5 to 1.
(b) The foregoing limitations of paragraph (a) of this
covenant will not apply to any of the following Indebtedness ("Permitted
Indebtedness"), each of which shall be given independent effect:
(i) Indebtedness of the Company evidenced by the Notes;
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(ii) Indebtedness of the Company or any Restricted
Subsidiary outstanding on the Issue Date;
(iii) Indebtedness of the Company or any Restricted
Subsidiary under one or more Credit Facilities, in an aggregate
principal amount at any one time outstanding not to exceed the greater
of (x) $35 million and (y) 80% of Eligible Accounts Receivable at any
one time outstanding, subject to any permanent reductions required by
any other terms of this Indenture;
(iv) Indebtedness of the Company or any Restricted
Subsidiary Incurred to finance the cost (including the cost of design,
development, construction, acquisition, installation or integration)
of Telecommunications Assets;
(v) Indebtedness of a Restricted Subsidiary owed to and
held by the Company or another Restricted Subsidiary, except that (A)
any transfer of such Indebtedness by the Company or a Restricted
Subsidiary (other than to the Company or another Restricted
Subsidiary) or (B) the sale, transfer or other disposition by the
Company or any Restricted Subsidiary of Capital Stock of a Restricted
Subsidiary which is owed Indebtedness of another Restricted Subsidiary
shall, in each case, be an Incurrence of Indebtedness by such
Restricted Subsidiary, subject to the other provisions of this
Indenture;
(vi) Indebtedness of the Company owed to and held by a
Restricted Subsidiary which is unsecured and subordinated in right to
the payment and performance to the obligations of the Company under
this Indenture and the Notes, except that the limitations of paragraph
(a) of this Section 1011 shall apply to such Indebtedness at such time
as (A) any transfer of such Indebtedness by a Restricted Subsidiary
(other than to another Restricted Subsidiary) and (B) the sale,
transfer or other disposition by the Company or any Restricted
Subsidiary of Capital Stock of a Restricted Subsidiary which is owed
such Indebtedness, subject to other provisions of this Indenture;
(vii) Indebtedness of the Company or a Restricted Subsidiary
issued in exchange for, or the net proceeds of which are used to
refinance (whether by amendment, renewal, extension or refunding),
then outstanding Indebtedness of the Company or a Restricted
Subsidiary, other than Indebtedness Incurred under clauses (iii), (v),
(vi), (viii), (ix), (xi) and (xii) of this paragraph, and any
refinancings thereof in an amount not to exceed the amount so
refinanced or refunded (plus premiums, accrue interest, and reasonable
fees and expenses); provided that such new Indebtedness shall only be
permitted under this clause (vii) if: (A) in case the Notes are
refinanced in part or the Indebtedness to be refinanced is pari passu
with the Notes, such new Indebtedness, by its terms or by the terms of
any agreement or instrument pursuant to which such new Indebtedness is
issued or remains outstanding, is expressly made pari passu with, or
subordinate in right of payment to, the remaining Notes, (B) in case
the Indebtedness to be refinanced is subordinated in right of payment
to the Notes, such new Indebtedness, by its terms or by the terms of
any agreement or instrument pursuant to which such new Indebtedness is
issued or remains outstanding, is expressly made subordinate in right
of payment to the
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Notes at least to the extent that the Indebtedness to be refinanced is
subordinated to the Notes and (C) such new Indebtedness, determined as
of the date of Incurrence of such new Indebtedness, does not mature
prior to the Stated Maturity of the Indebtedness to be refinanced or
refunded, and the Average Life of such new Indebtedness is at least
equal to the remaining Average Life of the Indebtedness to be
refinanced or refunded; and provided further that in no event may
Indebtedness of the Company be refinanced by means of any Indebtedness
of any Restricted Subsidiary pursuant to this clause (vii);
(viii) Indebtedness of (x) the Company not to exceed, at any
one time outstanding, 2.00 times the Net Cash Proceeds from the
issuance and sale, other than to a Subsidiary, of Common Stock (other
than Redeemable Stock) of the Company (less the amount of such
proceeds used to make Restricted Payments as provided in clause (iii)
or (iv) of the second paragraph of Section 1012) and (y) the Company
or Acquired Indebtedness of a Restricted Subsidiary not to exceed, at
one time outstanding, the fair market value of any Telecommunications
Assets acquired by the Company in exchange for Common Stock of the
Company issued after the Issue Date; provided, however, that in
determining the fair market value of any such Telecommunications
Assets so acquired, if the estimated fair market value of such
Telecommunications Assets exceeds (A) $2 million (as estimated in good
faith by the Board of Directors), then the fair market value of such
Telecommunications Assets will be determined by a majority of the
Board of Directors of the Company, which determination will be
evidenced by a resolution thereof, and (B) $10 million (as estimated
in good faith by the Board of Directors), then the Company shall
deliver the Trustee a written appraisal as to the fair market value of
such Telecommunications Assets prepared by a nationally recognized
investment banking or public accounting firm (or, if no such
investment banking or public accounting firm is qualified to prepare
such an appraisal, by a nationally recognized appraisal firm); and
provided further that such Indebtedness does not mature prior to the
Stated Maturity of the Notes and the Average Life of such Indebtedness
is longer than that of the Notes;
(ix) Indebtedness of the Company or any Restricted
Subsidiary (A) in respect of performance, surety or appeal bonds or
letters of credit supporting trade payables, in each case provided in
the ordinary course of business, (B) under Currency Agreements and
Interest Rate Agreements covering Indebtedness of the Company;
provided that such agreements do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations
in foreign currency exchange rate or interest rates or by reason of
fees, indemnities and compensation payable thereunder, and (C) arising
from agreements providing for indemnification, adjustment of purchase
price or similar obligations, or from Guarantees or letters of credit,
surety bonds or performance bonds securing any obligations of the
Company or any of its Restricted Subsidiaries pursuant to such
agreements, in any case Incurred in connection with the disposition of
any business, assets or Restricted Subsidiary of the Company (other
than Guarantees of Indebtedness Incurred by any Person acquiring all
or any portion of such business, assets or Restricted Subsidiary for
the purpose of financing such acquisition), in a principal amount not
to exceed the gross proceeds actually received by the Company or any
Restricted Subsidiary in connection with such disposition;
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(x) Indebtedness of the Company, to the extent that the net
proceeds thereof are promptly (A) used to repurchase Notes tendered in
a Change of Control Offer or (B) deposited to defease all of the Notes
pursuant to Article Thirteen;
(xi) Indebtedness of a Restricted Subsidiary represented by
a Guarantee of the Notes permitted by and made in accordance with
Section 1018; and
(xii) Indebtedness of the Company or any Restricted
Subsidiary in addition to that permitted to be incurred pursuant to
clauses (i) through (xi) above in an aggregate principal amount not in
excess of $10 million (or, to the extent not denominated in United
States dollars, the United States Dollar Equivalent thereof) at any
one time outstanding.
(c) For purposes of determining any particular amount of
indebtedness under this Section 1011, Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included; provided,
however, that the foregoing shall not in any way be deemed to limit the
provisions of Section 1018. For purposes of determining compliance with this
Section 1011, in the event that an item of Indebtedness meets the criteria of
more than one of the types of Indebtedness described in the above clauses, the
Company, in its sole discretion may, at the time of such Incurrence, (i)
classify such item of Indebtedness under and comply with either of paragraph
(a) or (b) of this covenant (or any of such definitions), as applicable, (ii)
classify and divide such item of Indebtedness into more than one of such
paragraphs (or definitions), as applicable, and (iii) elect to comply with such
paragraphs (or definitions), as applicable in any order.
SECTION 1012. Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) (A) declare or pay any dividend or
make any distribution in respect of the Company's Capital Stock to the holders
thereof (other than dividends or distributions payable solely in shares of
Capital Stock (other than Redeemable Stock) of the Company or in options,
warrants or other rights to acquire such shares of Capital Stock) or (B)
declare or pay any dividend or make any distribution in respect of the Capital
Stock of any Restricted Subsidiary to any Person other than dividends and
distributions payable to the Company or any Restricted Subsidiary or to all
holders of Capital Stock of such Restricted Subsidiary on a pro rata basis;
(ii) purchase, redeem, retire or otherwise acquire for value any shares of
Capital Stock of the Company (including options, warrants or other rights to
acquire such shares of Capital Stock) held by any Person or any shares o
Capital Stock of any Restricted Subsidiary (including options, warrants and
other rights to acquire such shares of Capital Stock) held by any Affiliate of
the Company (other than a wholly owned Restricted Subsidiary) or any holder (or
any Affiliate thereof) of 5% or more of the Company's Capital Stock; (iii) make
any voluntary or optional principal payment, or voluntary or optional
redemption, repurchase, defeasance, or other acquisition or retirement for
value, of Indebtedness of the Company that is subordinated in right of payment
to the Notes; or (iv) make any Investment, other than a Permitted Investment,
in any Person (such payments or any other actions described in clauses (i)
through (iv) being
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collectively "Restricted Payments") if, at the time of, and after giving effect
to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred and be
continuing;
(B) the Company could not Incur at least $1.00 of
Indebtedness under paragraph (a) of Section 1011; and
(C) the aggregate amount of all Restricted Payments declared
or made from and after the Closing Date would exceed the sum of:
(1) Cumulative Consolidated Cash Flow minus 200% of
Cumulative Consolidated Fixed Charges;
(2) 100% of the aggregate Net Cash Proceeds from the
issue or sale to a Person, which is not a Subsidiary of the
Company, of Capital Stock of the Company (other than
Redeemable Stock) or of debt securities of the Company which
have been converted into or exchanged for such Capital Stock
(except to the extent such Net Cash Proceeds are used to
Incur new Indebtedness outstanding pursuant to clause (viii)
of paragraph (b) of Section 1011); and
(3) to the extent any Permitted Investment that was
made after the Closing Date is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (i) the cash
return of capital with respect to such Permitted Investment
(less the cost of disposition, if any) and (ii) the initial
amount of such Permitted Investment.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date of declaration
thereof if, at said date of declaration, such payment would comply with the
foregoing paragraph; (ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is subordinated in
right of payment to the Notes including a premium, if any, and accrued and
unpaid interest and Liquidated Damages, if any, with the net proceeds of, or in
exchange for, Indebtedness Incurred under clause (viii) of paragraph (b) of
Section 1011; (iii) the repurchase, redemption or other acquisition of Capital
Stock of the Company in exchange for, or out of the Net Cash Proceeds of a
substantially concurrent (A) capital contribution to the Company or (B)
offering of, shares of Capital Stock (other than Redeemable Stock) of the
Company (except to the extent such proceeds are used to incur new Indebtedness
outstanding pursuant to clause (viii) of paragraph (b) of Section 1011); (iv)
the acquisition of Indebtedness of the Company which is subordinated in right
of payment to the Notes in exchange for, or out of the proceeds of, a
substantially concurrent (A) capital contribution to the Company or (B)
offering of, shares of the Capital Stock of the Company (other than Redeemable
Stock) (except to the extent such proceeds are used to incur new Indebtedness
outstanding pursuant to clause (viii) of paragraph (b) of Section 1011); (v)
payments or distributions to dissenting stockholders in accordance with
applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets that complies with
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Article Eight; and (vi) other Restricted Payments not to exceed $2 million;
provided that, except in the case of clause (i), no Default or Event of Default
shall have occurred and be continuing or occur as a consequence of the actions
or payments set forth therein.
Each Restricted Payment permitted pursuant to the immediately
preceding paragraph (other than the Restricted Payment referred to in clause
(ii) thereof) and the Net Cash Proceeds from any capital contributions to the
Company or issuance of Capital Stock referred to in clauses (iii) and (iv) of
the immediately preceding paragraph, shall be included in calculating whether
the conditions of clause (C) of the first paragraph of this Section 1012 have
been met with respect to any subsequent Restricted Payments. In the event the
proceeds of an issuance of Capital Stock of the Company are used for the
redemption, repurchase or other acquisition of the Notes, then the Net Cash
Proceeds of such issuance shall be included in clause (C) of the first
paragraph of this Section 1012 only to the extent such proceeds are not used
for such redemption, repurchase or other acquisition of the Notes.
SECTION 1013. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
So long as any of the Notes are Outstanding, the Company
shall not, and shall not permit any Restricted Subsidiary to, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to do any one of the following:
(i) pay dividends or make any other distributions permitted
by applicable law on any Capital Stock of such Restricted Subsidiary
owned by the Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary;
(iii) make loans or advances to the Company or any other
Restricted Subsidiary; or
(iv) transfer any of its property or assets to the Company
or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances
or restrictions:
(i) existing on the Closing Date in this Indenture or any
other agreements or instruments in effect on the Closing Date, and any
extensions, refinancings, renewals or replacements of such agreements;
provided that the encumbrances and restrictions in any such
extensions, refinancings, renewals or replacements are no less
favorable in any material respect to the Holders than those
encumbrances or restrictions that are then in effect and that are
being extended, refinanced, renewed or replaced;
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(ii) contained in the terms of any Indebtedness or any
agreement pursuant to which such Indebtedness was issued if the
encumbrance or restriction applies only in the event of a default with
respect to a financial covenant contained in such Indebtedness or
agreement and such encumbrance or restriction is not materially, more
disadvantageous to the Holders than is customary in comparable
financing (as determined by the Company) and the Company determines
that any such encumbrance or restriction will not materially affect
the Company's ability to make principal or interest payments on the
Notes;
(iii) existing under or by reason of applicable law;
(iv) existing with respect to any Person or the property or
assets of such Person acquired by the Company or any Restricted
Subsidiary, existing at the time of such acquisition and not incurred
in contemplation thereof, which encumbrances or restrictions are not
applicable to any Person or the property or assets of any Person other
than such Person or the property or assets of such Person so acquired;
(v) in the case of clause (iv) of the first paragraph of
this Section 1013, (A) that restrict in a customary manner the
subletting, assignment or transfer of any property or asset that is,
or is subject to, a lease, purchase mortgage obligation, license,
conveyance or contract or similar property or asset, (B) existing by
virtue of any transfer of, agreement to transfer, option or right with
respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture or (C)
arising or agreed to in the ordinary course of business, not relating
to any Indebtedness, and that do not, individually or in the
aggregate, detract from the value of property or assets of the Company
or any Restricted Subsidiary in any manner material to the Company or
any Restricted Subsidiary; or
(vi) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of, or
property and assets of, such Restricted Subsidiary. Nothing contained
in this Section 1013 shall prevent the Company or any Restricted
Subsidiary from (1) creating, incurring, assuming or suffering to
exist any Liens otherwise permitted in Section 1016 or (2) restricting
the sale or other disposition of property or assets of the Company or
any of its Restricted Subsidiaries that secure Indebtedness of the
Company or any of its Restricted Subsidiaries.
SECTION 1014. Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary, directly or indirectly, to issue, transfer, convey, sell, lease or
otherwise dispose of any shares of Capital Stock (including options, warrants
or other rights to purchase shares of such Capital Stock) of such or any other
Restricted Subsidiary (other than to the Company or a wholly owned Restricted
Subsidiary or in respect of any director's qualifying shares or sales of shares
of Capital Stock to foreign nationals mandated by applicable law) to any Person
unless (A) the Net Cash Proceeds
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from such issuance, transfer, conveyance, sale, lease or other disposition are
applied in accordance with Section 1017, (B) immediately after giving effect to
such issuance, transfer, conveyance, sale, lease or other disposition, such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary and
(C) any Investment in such Person remaining after giving effect to such
issuance, transfer, conveyance, sale, lease or other disposition would have been
permitted to be made under Section 1012 if made on the date of such issuance,
transfer, conveyance, sale, lease or other disposition (valued as provided in
the definition of "Investment" contained in Section 101).
SECTION 1015. Limitation on Transactions with Stockholders and Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any
holder (or any Affiliate of such holder) of 5% or more of any class of Capital
Stock of the Company or any Restricted Subsidiary or with any Affiliate of the
Company or any Restricted Subsidiary, unless the following conditions have been
met:
(i) such transaction or series of transactions is on terms
no less favorable to the Company or such Restricted Subsidiary than
those that could be obtained in a comparable arm's-length transaction
with a Person that is not such a holder or an Affiliate;
(ii) if such transaction or series of transactions involves
aggregate consideration in excess of $2 million, then such transaction
or series of transactions is approved by a majority of the Board of
Directors of the Company and is evidenced by a resolution therein; and
(iii) if such transaction or series of transactions involves
aggregate consideration in excess of $10 million, then the Company or
such Restricted Subsidiary shall deliver to the Trustee a written
opinion as to the fairness to the Company or such Restricted
Subsidiary of such transaction from a financial point of view from a
nationally recognized investment banking firm (or, if an investment
banking firm is generally not qualified to give such an opinion, by a
nationally recognized appraisal firm or accounting firm).
The foregoing limitation does not limit, and will not apply
to (i) any transaction between the Company and any of its Restricted
Subsidiaries or between Restricted Subsidiaries; (ii) the payment of reasonable
and customary regular fees to directors of the Company who are not employees of
the Company; (iii) any Restricted Payments not prohibited by Section 1012; (iv)
loans and advances to officers or employees of the Company and its Subsidiaries
not exceeding at any one time outstanding $1.5 million in the aggregate, made
in the ordinary course of business; and (v) arrangements with TMG, Armstrong
and/or its subsidiaries existing on the date of this Indenture and listed on
Schedule A attached thereto as such arrangements may be extended or renewed;
provided that the terms of any arrangement altered by any such extension or
renewal may not be altered in a manner adverse to the Company or the Holders of
the Notes.
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SECTION 1016. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien (other than Permitted Liens) on any of its assets or properties of any
character (including, without limitation, licenses and trademarks), or any
shares of Capital Stock or Indebtedness of any Restricted Subsidiary, whether
owned at the date of this Indenture or thereafter acquired, or any income,
profits or proceeds therefrom, or assign or otherwise convey any right to
receive income thereof, without making effective provision for all of the Notes
and all other amounts ranking pari passu with the Notes to be directly secured
equally and ratably with the obligation or liability secured by such Lien or,
if such obligation or liability is subordinated to the Notes and other amounts
ranking pari passu with the Notes, without making provision for the Notes and
such other amounts to be directly secured prior to the obligation or liability
secured by such Lien.
SECTION 1017. Limitation on Asset Sales.
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Sale unless (i) the Company or the Restricted
Subsidiary, as the case may be, receives consideration at the time of such sale
or other disposition at least equal to the fair market value of the assets sold
or disposed of as determined by the good faith judgment of the Board of
Directors evidenced by a Board Resolution and (ii) at least 80% of the
consideration received for such sale or other disposition consists of cash or
cash equivalents or the assumption of unsubordinated Indebtedness.
The Company shall, or shall cause the relevant Restricted
Subsidiary to, within 270 days after the date of receipt of the Net Cash
Proceeds from an Asset Sale, (i) (A) apply an amount equal to such Net Cash
Proceeds to permanently repay unsubordinated Indebtedness of the Company or
Indebtedness of any Restricted Subsidiary, in each case owing to a Person other
than the Company or any of its Restricted Subsidiaries or (B) invest an equal
amount, or the amount not so applied pursuant to clause (A), in property or
assets of a nature or type or that are used in a business (or in a company
having property and assets of a nature or type, or engaged in a business)
similar or related to the nature or type of the property and assets of, or the
business of, the Company and its Restricted Subsidiaries existing on the date
of such investment (as determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board Resolution)
and (ii) apply (no later than the end of the 270-day period referred to above)
such excess Net Cash Proceeds (to the extent not applied pursuant to clause
(i)) as provided in the following paragraphs of this Section 1017. The amount
of such Net Cash Proceeds required to be applied (or to be committed to be
applied) during such 270-day period referred to above in the preceding sentence
and not applied as so required by the end of such period shall constitute
"Excess Proceeds".
If, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer
(as defined below) totals at least $10 million, the Company must, not later
than the 30th Business Day thereafter, make an offer (an "Excess Proceeds
Offer") to purchase from the Holders on a pro rata basis an aggregate
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principal amount of Notes equal to the Excess Proceeds on such date, at a
purchase price equal to 100% of the principal amount of the Notes, plus, in
each case, accrued and unpaid interest and Liquidated Damages, if any, to the
date of purchase (the "Excess Proceeds Payment").
The Company shall commence an Excess Proceeds Offer by
mailing a notice to the Trustee and each Holder stating: (i) that the Excess
Proceeds Offer is being made pursuant to this Section 1017 and that all Notes
validly tendered will be accepted for payment on a pro rata basis; (ii) the
purchase price and the date of purchase (which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is
mailed) (the "Excess Proceeds Payment Date"); (iii) that any Note not tendered
will continue to accrue interest pursuant to its terms; (iv) that, unless the
Company defaults in the payment of the Excess Proceeds Payment, any Note
accepted for payment pursuant to the Excess Proceeds Offer shall cease to
accrue interest and Liquidated Damages, if any, on and after the Excess
Proceeds Payment Date; (v) that Holders electing to have a Note purchased
pursuant to the Excess Proceeds Offer will be required to surrender the Note,
together with the form entitled "Option of the Holder to Elect Purchase" on the
reverse side of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
immediately preceding the Excess Proceeds Payment Date; (vi) that Holders shall
be entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the third Business Day immediately preceding the
Excess Proceeds Payment Date, a telegram, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of Notes delivered
for purchase and a statement that such Holder is withdrawing his election to
have such Notes purchased; and (vii) that Holders whose Notes are being
purchased only in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or
integral multiples thereof.
On the Excess Proceeds Payment Date, the Company shall (i)
accept for payment on a pro rata basis Notes or portions thereof tendered
pursuant to the Excess Proceeds Offer; (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes or portions thereof so
accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes
or portions thereof so accepted together with an Officer's Certificate
specifying the Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price, and the Trustee shall upon
Company Order promptly authenticate and mail to such Holders a new Note equal
in principal amount to any unpurchased portion of the Note surrendered;
provided that each Note purchased and each new Note issued shall be in a
principal amount of $1,000 or integral multiples thereof. To the extent that
the aggregate principal amount of Notes tendered is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. The Company shall publicly announce the results of the
Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment
Date. For purposes of this Section 1017, the Trustee shall act as the Paying
Agent.
The Company shall comply with Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are
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applicable, in the event that such Excess Proceeds are received by the Company
under this Section 1017 and the Company is required to repurchase Notes as
described above.
SECTION 1018. Limitation on Issuances of Guarantees of Indebtedness by
Restricted Subsidiaries.
The Company shall not permit any Restricted Subsidiary,
directly or indirectly, to Guarantee, assume or in any other manner become
liable with respect to any Indebtedness of the Company, other than Indebtedness
under Credit Facilities incurred under clause (iii) of paragraph (b) in Section
1011, unless (i) such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture providing for a Guarantee
of the Notes on terms substantially similar to the Guarantee of such
Indebtedness, except that if such Indebtedness is by its express terms
subordinated in right of payment to the Notes, any such assumption, Guarantee
or other liability of such Restricted Subsidiary with respect to such
Indebtedness shall be subordinated in right of payment to such Restricted
Subsidiary's assumption, Guarantee or other liability with respect to the Notes
substantially to the same extent as such Indebtedness is subordinated to the
Notes and (ii) such Restricted Subsidiary waives, and shall not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such
Restricted Subsidiary under its Guarantee.
Notwithstanding the foregoing, any Guarantee by a Restricted
Subsidiary may provide by its terms that it will be automatically and
unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all of the
Company's and each Restricted Subsidiary's Capital Stock in, or all or
substantially all of the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture) or (ii) the release
or discharge of the guarantee which resulted in the creation of such Guarantee,
except a discharge or release by or as a result of payment under such
Guarantee.
SECTION 1019. Business of the Company; Restriction on Transfers of Existing
Business.
The Company shall not, and shall not permit any Restricted
Subsidiary to, be principally engaged in any business or activity other than a
Permitted Business. In addition, the Company and any Restricted Subsidiary
shall not be permitted to, directly or indirectly, transfer to any Unrestricted
Subsidiary (i) any of the licenses, material agreements or instruments, permits
or authorizations used in the Permitted Business of the Company and any
Restricted Subsidiary on the Closing Date or (ii) any material portion of the
"property and equipment" (as such term is used in the Company's consolidated
financial statements) of the Company or any Restricted Subsidiary used in the
licensed service areas of the Company and any Restricted Subsidiary as they
exist on the Closing Date.
SECTION 1020. Limitation on Investments in Unrestricted Subsidiaries.
The Company shall not make, and shall not permit any of its
Restricted Subsidiaries to make, any Investments in Unrestricted Subsidiaries
if, at the time thereof, the
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aggregate amount of such Investments together with any other Restricted
Payments made after the Closing Date would exceed the amount of Restricted
Payments then permitted to be made pursuant to Section 1012. Any Investments in
Unrestricted Subsidiaries permitted to be made pursuant to this covenant (i)
shall be treated as the making of a Restricted Payment in calculating the
amount of Restricted Payments made by the Company or a Subsidiary and (ii) may
be made in cash or property (if made in property, the Fair Market Value thereof
as determined by the Board of Directors of the Company (whose determination
shall be conclusive and evidenced by a Board Resolution) shall be deemed to be
the amount of such Investment for the purpose of clause (i) of this Section
1020).
SECTION 1021. Limitation on Sale-Leaseback Transactions.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any Sale-Leaseback Transaction with
respect to any property of the Company or any of its Restricted Subsidiaries.
Notwithstanding the foregoing, the Company may enter into
Sale-Leaseback Transactions; provided, however, that (a) the Attributable Value
of such Sale-Leaseback Transaction shall be deemed to be Indebtedness of the
Company and (b) after giving pro forma effect to any such Sale-Leaseback
Transaction and the foregoing clause (a), the Company would be able to incur
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant
to Section 1011.
SECTION 1022. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Section 803 or Sections 1007
through 1021, inclusive, if before or after the time for such compliance the
Holders of at least a majority in aggregate principal amount of the Outstanding
Notes, by Act of such Holders, waive such compliance in such instance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1011. Right of Redemption.
(a) The Notes may be redeemed, at the election of the Company, as a
whole or in part, at any time or from time to time, on or after January 15,
2003, subject to the conditions and at the Redemption Prices specified in the
form of Note, together with accrued and unpaid interest and Liquidated Damages,
if any, thereon to the Redemption Date.
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(b) Notwithstanding the foregoing, prior to January 15, 2001,
the Company may redeem up to 35% of the originally issued aggregate principal
amount of the Notes on one or more occasions with the Net Cash Proceeds of one
or more Public Equity Offerings at a redemption price equal to 110.5% of the
aggregate principal amount thereof, plus accrued interest, if any, and
Liquidated Damages, if any, thereon to the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date); provided that, immediately after
giving effect to such redemption, at least 65% of the originally issued
aggregate principal amount of the Notes remains Outstanding; and provided
further that notice of such redemptions shall be given within 60 days of the
date of closing of any such Public Equity Offering.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the Redemption Price and of the principal amount of Notes to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Notes to be redeemed pursuant to Section
1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption, in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not listed on a national securities exchange, on a pro rata basis, by
lot or by such other method as the Trustee in its sole discretion shall deem
fair and appropriate and which may provide for the selection for redemption of
portions of the principal of Notes; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Note not
redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be
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redeemed only in part, to the portion of the principal amount of such Note
which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided
for in Section 106 not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest
to the Redemption Date payable as provided in Section 1107, if any;
(3) if less than all Outstanding Notes are to be redeemed,
the identification (and, in the case of a partial redemption, the
principal amounts) of the particular Notes to be redeemed;
(4) in case any Note is to be redeemed in part only, the
notice which relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the Holder shall
receive, without charge, a new Note or Notes of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price (and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1107) will become due and payable upon each such Note, or
the portion thereof, to be redeemed, and that interest thereon will
cease to accrue on and after said date; and
(6) the place or places where such Notes are to be
surrendered for payment of the Redemption Price and accrued interest,
if any.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and Liquidated
Damages, if any, and accrued interest on, all the Notes which are to be
redeemed on that date.
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SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Notes so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified (together with Liquidated Damages and
accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Notes shall cease to bear interest. Upon surrender of
any such Note for redemption in accordance with said notice, such Note shall be
paid by the Company at the Redemption Price, together with Liquidated Damages
and accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Notes, or one or more Predecessor
Notes, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 307.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Notes.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part (pursuant to
the provisions of this Article Eleven) shall be surrendered at the office or
agency of the Company maintained for such purpose pursuant to Section 1002
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
upon Company Order authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Note so
surrendered.
ARTICLE TWELVE
SECURITY
SECTION 1201. Security.
(a) On the Closing Date, the Company shall purchase, and, at
all times, subject to the Pledge Agreement, shall maintain Pledged Securities
pledged to the Trustee as security for the benefit of the Holders in such
amount as will be sufficient upon receipt of scheduled interest and/or
principal payments of such Pledged Securities, in the opinion of a nationally
recognized firm of independent public accountants selected by the Company, to
provide for payment in full of the first six scheduled interest payments due on
the outstanding Notes. The Pledged Securities shall be pledged by the Company
to the Trustee for the benefit of the Holders and shall be held by the Trustee
in the Pledge Account pending disposition pursuant to the Pledge Agreement.
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(b) Each Holder, by its acceptance of a Note, consents and
agrees to the terms of the Pledge Agreement (including, without limitation, the
provisions providing for foreclosure and release of the Pledged Securities) as
the same may be in effect or may be amended from time to time in accordance
with its terms, and authorizes and directs the Trustee to enter into the Pledge
Agreement and to perform its respective obligations and exercise its respective
rights thereunder in accordance therewith. The Company shall do or cause to be
done all such acts and things as may be necessary or proper, or as may be
required by the provisions of the Pledge Agreement, to assure and confirm to
the Trustee the security interest in the Pledged Securities contemplated
hereby, by the Pledge Agreement or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Notes secured hereby, according to the intent and
purposes herein expressed. The Company shall take, or shall cause to be taken,
any and all actions reasonably required (and any action reasonably requested by
the Trustee) to cause the Pledge Agreement to create and maintain, as security
for the obligations of the Company under this Indenture and the Notes, valid
and enforceable first priority liens in and on all the Pledged Securities, in
favor of the Trustee, superior to and prior to the rights of third Persons and
subject to no other Liens.
(c) The release of any Pledged Securities pursuant to the
Pledge Agreement will not be deemed to impair the security under this Indenture
in contravention of the provisions hereof if and to the extent the Pledged
Securities are released pursuant to this Indenture and the Pledge Agreement. To
the extent applicable, the Company shall cause TIA Section 314(d) relating to
the release of property or securities from the Lien and security interest of
the Pledge Agreement (other than pursuant to Sections 7(e) and 7(g) thereof)
and relating to the substitution therefor of any property or securities to be
subjected to the Lien and security interest of the Pledge Agreement to be
complied with. Any certificate or opinion required by TIA Section 314(d) may be
made by an officer of the Company, except in cases where TIA Section 314(d)
requires that such certificate or opinion be made by an independent Person,
which Person shall be an independent engineer, appraiser or other expert
selected by the Company.
(d) The Trustee, in its sole discretion and without the
consent of the Holders, may, and at the request of the Holders of at least 25%
in aggregate principal amount of Notes then outstanding shall, on behalf of the
Holders, take all actions it deems necessary or appropriate in order to (i)
enforce any of the terms of the Pledge Agreement and (ii) collect and receive
any and all amounts payable in respect of the obligations of the Company
thereunder. The Trustee shall have power to institute and to maintain such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders in the Pledged Securities
(including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the security interest hereunder or be prejudicial to the interests of
the Holders or of the Trustee).
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any
time, with respect to the Notes, elect to have either Section 1302 or Section
1303 be applied to all Outstanding Notes upon compliance with the conditions
set forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise under Section 1301 of the option
applicable to this Section 1302, the Company shall be deemed to have been
discharged from its obligations with respect to all Outstanding Notes on the
date the conditions set forth in Section 1304 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Notes, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1305 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Notes to receive payments, (solely from monies deposited
in trust) in respect of the principal of, premium, if any, interest and
Liquidated Damages, if any, on such Notes when such payments are due, (B) the
Company's obligations with respect to such Notes under Sections 304, 305, 306,
1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Thirteen. Subject to compliance with
this Article Thirteen, the Company may exercise its option under this Section
1302 notwithstanding the prior exercise of its option under Section 1303 with
respect to the Notes.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise under Section 1301 of the option
applicable to this Section 1303, the Company shall be released from its
obligations under any covenant contained in Section 801(3) and (4) and Section
803 and in Sections 1007 through 1022 with respect to the Outstanding Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Notes shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the Outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of
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Default under Section 501(6), but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
either Section 1302 or Section 1303 to the Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Notes, (A) cash in United States
dollars, or (B) U.S. Government Obligation or (C) a combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and
premium, if any), interest and Liquidated Damages, if any, on the
Outstanding Notes on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment of
interest and Liquidated Damages, if any, and (ii) any mandatory
sinking fund payments or analogous payments applicable to the
Outstanding Notes on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Notes; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Notes. Before such a
deposit, the Company may give to the Trustee, in accordance with
Section 1103 hereof, a notice of its election to redeem all of the
Outstanding Notes at a future date in accordance with Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable redemption
notice, if given, shall be given effect in applying the foregoing. For
this purpose, "U.S. Government Obligations" means securities that are
(x) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of
such depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
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(2) No Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit or,
insofar as paragraph (9) or (10) of Section 501 hereof is concerned,
at any time during the period ending on the 123rd day after the date
of such deposit.
(3) [Reserved]
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under any
material agreement or instrument (other than this Indenture) to which
the Company is a party or by which it is bound.
(5) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since
January 15, 1998, there has been a change in the applicable federal
income tax law, in either case to the effect, and based thereon such
opinion shall confirm, that Holders will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance had not occurred.
(6) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(7) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with.
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Governmental
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1304 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance, as applicable, in accordance with this Article.
SECTION 1306. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1305 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1302 or 1303, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1305; provided, however, that if the Company makes any payment of
principal of (or premium, if any) or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
This Indenture may be signed in any number of counterparts
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
FACILICOM INTERNATIONAL, INC.
By: /s/ Christopher S. King
---------------------------
Name: Christopher S. King
Title: Chief Financial Officer
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STATE STREET BANK AND TRUST
COMPANY,
Trustee
By: /s/ Robert J. Dunn
-------------------------
Name: Robert J. Dunn
Title: Vice President
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Exhibit A
FORM OF FACE OF NOTE
FACILICOM INTERNATIONAL, INC.
10 1/2% Senior Note due 2008
[CUSIP] [CINS]
No. ____________ $_________________
FACILICOM INTERNATIONAL, INC., a Delaware corporation (herein
called the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ____________________ or registered assigns, the principal sum of ___ United
States dollars on January 15, 2008, at the office or agency of the Company
referred to below, and to pay interest thereon on July 15, 1998 and semi-
annually thereafter, on January 15 and July 15 in each year, from January 28,
1998 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, at the rate of 10 1/2% per annum, until the
principal hereof is paid or duly provided for, and (to the extent lawful) to
pay on demand interest on any overdue interest at the rate borne by the Notes
from the date on which such overdue interest becomes payable to the date
payment of such interest has been made or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on the Regular Record Date for such interest, which shall be the January 1 or
July 1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and such Defaulted Interest, and (to the extent lawful) interest
on such defaulted interest at the rate borne by the Notes, may be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Notes not less than 10 days prior to such Special Record Date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
[The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated as of January 28, 1998 (the "Registration
Rights Agreement"), between the Company and the Initial Purchasers named
therein. In the event that either (i) the Company fails to file with the
Commission any of the Registration Statements required by the Registration
Rights Agreement on or before the date specified therein for such filing, (ii)
any of such Registration Statements is not declared effective by the Commission
on or prior to the date
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specified for such effectiveness in the Registration Rights Agreement (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been consummated
within 30 days after the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement or (iv) any Registration Statement required by the
Registration Rights Agreement is filed and declared effective but thereafter
ceases to be effective or fails to be usable for its intended purpose without
being succeeded within five business days by a post-effective amendment to such
Registration Statement that cures such failure and that is declared effective
within such five business day period (each such event referred to in clauses
(i) through (iv) above, a "Registration Default"), additional cash interest
("Liquidated Damages") shall accrue to each Holder of the Notes commencing upon
the occurrence of such Registration Default in an amount equal to .50% per
annum of the principal amount of Notes held by such Holder. The amount of
Liquidated Damages will increase by an additional .50% per annum of the
principal amount of Notes with respect to each subsequent 90-day period (or
portion thereof) until all Registration Defaults have been cured, up to a
maximum rate of Liquidated Damages of 1.50% per annum of the principal amount
of Notes. All accrued Liquidated Damages will be paid to Holders by the Company
in the same manner as interest is paid pursuant to the Indenture. Following the
cur of all Registration Defaults relating to any particular Transfer Restricted
Securities (as defined in the Registration Rights Agreement), the accrual of
Liquidated Damages with respect to such Transfer Restricted Securities will
cease.](1)
The principal of (and premium and Liquidated Damages, if any)
and interest on the Notes shall be payable at the office or agency of the
Company maintained for such purpose (which shall initially be the Office of the
Trustee located at 61 Broadway, New York, New York 10006, unless the Company
shall designate and maintain some other office or agency for such purpose),
and, at the option of the Company, interest may be paid by check mailed to
addresses of the holders as such address appears in the Register; provided that
all payments with respect to the Global Notes and Certificated Notes, the
Holders of which have given wire transfer instructions to the Company, will be
required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
- -------------------------
(1) To be included in Initial Notes.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
FACILICOM INTERNATIONAL, INC.
By:
------------------------------------
Name: Christopher S. King
Title: Chief Financial Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
---------------------------
This is one of the 10 1/2% Senior Notes due 2008 referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, Trustee
By:
------------------------------------
Authorized Signatory
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FORM OF REVERSE SIDE OF NOTE
FACILICOM INTERNATIONAL, INC.
10 1/2% Senior Note due 2008
This Note is one of a duly authorized issue of securities of
the Company designated as its 10 1/2% Senior Notes due 2008 (herein called the
"Notes"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $300,000,000, which may be issued under
an indenture (herein called the "Indenture") dated as of January 28, 1998
between the Company and State Street Bank and Trust Company, trustee (herein
called the "Trustee", which term includes an successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Notes, and of the terms upon which the Notes
are, and are to be, authenticated and delivered.
The Notes are subject to redemption upon not less than 30 nor
more than 60 days' prior notice, in whole or in part, at any time or from time
to time on or after January 15, 2003, at the election of the Company, at
Redemption Prices (expressed in percentages of principal amount thereof), plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on an Interest Payment Date that is on or
prior to the Redemption Date), if redeemed during the 12-month period
commencing on January 15, of the years set forth below:
Year Redemption Price
- ---- ----------------
2003....................................................... 105.25%
2004....................................................... 103.50
2005....................................................... 101.75
2006 (and thereafter)...................................... 100.00%
Notwithstanding the foregoing, prior to January 15, 2001, the
Company may on any one or more occasions redeem up to 35% of the originally
issued aggregate principal amount of Notes at a redemption price of 110.5% of
the aggregate principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon, to the Redemption Date, with the Net Cash
Proceeds of one or more Public Equity Offerings; provided that at least 65% of
the originally issued principal amount of the Notes remains outstanding
immediately after the occurrence of such redemption; and provided further that
notice of such redemptions shall be given within 60 days of the closing of any
such Public Equity Offering.
Upon the occurrence of a Change of Control, the Holder of
this Note may require the Company, subject to certain limitations provided in
the Indenture, to repurchase all or any
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part of this Note at a purchase price in cash in an amount equal to 101% of the
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any.
Under certain circumstances, in the event the Net Cash
Proceeds received by the Company from an Asset Sale, which proceeds are not
used to (i) (A) apply an amount equal to such Net Cash Proceeds to permanently
repay unsubordinated Indebtedness of the Company or Indebtedness of any
Restricted Subsidiary, in each case owing to a Person other than the Company or
any of its Restricted Subsidiaries or (B) invest an equal amount, or the amount
not so applied pursuant to clause (A), in property or assets of a nature or
type or that are used in a business (or in a company having property and assets
of a nature or type, or engaged in a business) similar or related to the nature
or type of the property and assets of, or the business of, the Company and its
Restricted Subsidiaries existing on the date of such investment (as determined
in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution) and (ii) apply (no later than
the end of the 270-day period immediately following the date of receipt of the
Net Cash Proceeds from an Asset Sale) such excess Net Cash Proceeds (to the
extent not applied pursuant to clause (i)) in accordance with the Indenture,
and which proceeds equal or exceed a specified amount, the Company shall be
required to make an offer to all Holders to purchase the maximum principal
amount of Notes, in an integral multiple of $1,000, that may be purchased out
of such amount at a purchase price in cash equal to 100% of the principal
amount thereof, plus accrued, unpaid interest and Liquidated Damages, if any,
to the date of purchase, in accordance with the Indenture. Holders of Notes
that are subject to any offer to purchase shall receive an Excess Proceeds
Offer from the Company prior to any related Excess Proceeds Payment Date.
In the case of any redemption or repurchase of Notes,
interest and Liquidated Damages installments, if any, whose Stated Maturity is
on or prior to the Redemption Date or Excess Proceeds Payment Date will be
payable to the Holders of such Notes, or one or more Predecessor Notes, of
record at the close of business on the relevant Record Date referred to on the
face hereof. Notes (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date or Excess Proceeds Payment Date, as the case
may be.
In the event of redemption or repurchase of this Note in part
only, a new Note or Notes for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (a) the entire Indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the
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rights of the Holders under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Notes at the time Outstanding. Additionally, the Indenture
permits that, without notice to or consent of any Holder, the Company and the
Trustee together may amend or supplement the Indenture or this Note to: (i)
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company contained herein and in the
Notes; (ii) add to the covenants of the Company for the benefit of the Holders
or to surrender any right or power herein conferred upon the Company; (iii) add
any additional Events of Default; (iv) evidence and provide for the acceptance
of appointment hereunder by a successor Trustee; (v) cure any ambiguity,
correct or supplement any provision herein which may be inconsistent with any
other provision herein, or make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action shall not
adversely affect the interests of the Holders in any material respect; or (vi)
secure the Notes. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by or on
behalf of the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herewith or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
interest and Liquidated Damages, if any, on this Note at the times, place, and
rate, and in the coin or currency, herein prescribed.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not listed on a national securities exchange, on a pro rata basis, by lot or by
such other method as the Trustee in its sole discretion shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal of Notes.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable on the
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain
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limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the time of due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered on
the Register as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee nor any agent shall be affected
by notice to the contrary.
THIS NOTE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Interest on this Note shall be computed on the basis of a
360-day year of twelve 30-day months. All capitalized terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
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FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
---------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
- -------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing attorney to transfer such Note on the books of the Company with full
power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL NOTES OTHER THAN
EXCHANGE NOTES, REGULATION S PERMANENT GLOBAL NOTES AND
REGULATIONS PERMANENT CERTIFICATED NOTES]
In connection with any transfer of this Note occurring prior
to the date which is the earlier of the date of an effective Registration
Statement or the end of the period referred to in Rule 144(k) under the
Securities Act, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[_] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
[_] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or
other Registrar shall not be obligated to register this Note in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 312 of the Indenture
shall have been satisfied.
Date:
---------------------- -------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
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Signature Guarantee /1/
------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
---------------------- ----------------------------------------------
NOTICE: To be executed by an executive officer
/1/ The Holder's signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to or in substitution for STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 1010 or Section 1017 of the Indenture, check the Box: [_]
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 1010 or Section 1017 of the Indenture, state the
amount (in original principal amount) below:
$
--------------------------.
Date:
-------------------
Your Signature:
--------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee /1/
------------------------
/1/ The Holder's signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to or in substitution for STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
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Exhibit B
Form of Certificate
to Be Delivered upon
Termination of Restricted Period
[DATE]
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: Facilicom International, Inc. (the "Company")
10 1/2% Senior Notes due 2008 (the "Notes")
Ladies and Gentlemen:
This letter relates to $__________ principal amount of Notes
represented by the offshore global note certificate (the "Regulation S Global
Note"). Pursuant to Section 201 of the Indenture dated as of January 28, 1998
relating to the Notes (the "Indenture"), we hereby certify that (1) we are the
beneficial owner of such principal amount of Notes represented by the
Regulation S Global Note and (2) we are a Non-U.S. Person to whom the Notes
could be transferred in accordance with Rule 904 of Regulation S promulgated
under the Securities Act of 1933, as amended ("Regulation S"). Accordingly, you
are hereby requested to issue a Regulation S Permanent Global Note representing
the undersigned's interest in the principal amount of Notes represented by the
Global Note, all in the manner provided by the Indenture.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
--------------------------------
Authorized Signature
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Exhibit C
Form of Regulation S Certificate
[DATE]
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Re: Facilicom International, Inc. (the "Company")
10 1/2% Senior Notes due 2008 (the "Notes")
Ladies and Gentlemen:
This Certificate relates to our proposed transfer of $____
principal amount of Notes issued under the Indenture dated as of January 28,
1998 relating to the Notes. Terms are used in this Certificate as defined in
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"). We hereby certify as follows:
1. The offer of the Notes was not made to a person in the
United States (unless such person or the account held by it for which
it is acting is excluded from the definition of "U.S. person" pursuant
to Rule 902(o) of Regulation S under the circumstances described in
Rule 902(i)(3) of Regulation S) or specifically targeted at an
identifiable group of U.S. citizens abroad.
2. Either (a) at the time the buy order was originated, the
buyer was outside the United States or we and any person acting on our
behalf reasonably believed that the buyer was outside the United
States or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market, and neither we
nor any person acting on our behalf knows that the transaction was
pre-arranged with a buyer in the United States.
3. Neither we, any of our affiliates, nor any person acting
on our or their behalf, has made any directed selling efforts in the
United States.
4. The proposed transfer of Notes is not part of a plan or
scheme to evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling
concession or other fee or remuneration in respect of the Notes, and
the proposed transfer takes place before the
105
Regulation S Note Exchange Date referred to in the Indenture, or we
are an officer or director of the Company or a distributor, we certify
that the proposed transfer is being made in accordance with the
provisions of Rule 904(c) of Regulation S.
You and the Company are entitled to rely upon this
Certificate and are irrevocably authorized to produce this Certificate or a
copy hereof to any interested party in any administrative or legal proceeding
or official inquiry with respect to the matters covered hereby.
Very truly yours,
[NAME OF SELLER]
By:
------------------------------------
Authorized Signature
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Schedule A
SCHEDULE A
I. Arrangements with Armstrong and its subsidiaries
A. FaciliCom International, L.L.C. First Amended and Restated
Limited Liability Company Agreement dated as of September 30,
1997 between Armstrong International Telecommunications, Inc.
and FCI Management Group
B. FCI (GP) LLC Limited Liability Company Agreement dated as of
September 30, 1997 between Armstrong International
Telecommunications, Inc. and FCI Management Group
C. FaciliCom International, Inc. Tax Sharing Agreement dated as
of December 22, 1997 between Armstrong Holdings, Inc. and
FaciliCom International, Inc.
D. Services Agreement dated as of July 1, 1997 between Armstrong
Holdings, Inc. and FaciliCom International, L.L.C.
E. Billing and MIS Services Agreement dated as of July 1, 1997
between Armstrong Holdings, Inc. and FaciliCom International,
L.L.C.
II. Arrangements with TMG -- There are no written arrangements between TMG
and the Company or any Restricted Subsidiary; however, TMG provides,
and expects to continue to provide, consulting services to the Company
and its Restricted Subsidiaries. See "Certain Relationships and
Related Transactions" in the Offering Memorandum dated January 23,
1998.